Commissioners for HM Revenue and Customs v Garau was a case about the rules under which claimants are only able to lodge a claim with the Employment Tribunal if they have first referred a complaint to ACAS for early conciliation (EC). The time limits for bringing a claim are relaxed a little so that the certification process does not prejudice the claimant. The timeline was:
- 1 October – claimant was given notice of termination, expiring on 30 December 2015.
- 12 October 2015 – claimant contacted ACAS under the mandatory EC procedure
- 4 November 2015 – ACAS issued EC certificate.
- 30 December 2015 – end of claimant's notice period – three month ordinary limitation period started to run
- 28 March 2016 – claimant contacted ACAS again.
- 29 March 2016 – end of ordinary limitation period (three months after 4).
- 25 May 2016 – claim for disability discrimination and unfair dismissal presented.
The EC rules say that if the three month time limit would end during the period starting on the date the claimant contacts ACAS and ending one month after the claimant receives the EC certificate, the time limit is extended to one month after the date the certificate is received. In other words, the period from applying to ACAS to the grant of the certificate is not counted. So in Garau, the claimant argued that the three month time limit would have ended at stage 6 above, which was after he applied to ACAS (stage 5) but before he received the second certificate (stage 7), so the time limit should be extended to one month after the date at stage 7. In the Tanveer case last year the EAT held that the last day for presenting the claim is the corresponding date of the next month after receipt of the certificate, so he maintained that his claim (at stage 8) was brought in time. The Tribunal Judge agreed.
The EAT allowed the appeal. The extension to the limitation period under the EC rules did not apply to the facts in this case. The first certificate was issued (at stage 3) before the three month limitation clock even began to start running (stage 4), so the EC time extension rules did not kick in. And the second certificate was not covered by the statutory scheme at all – it was a purely voluntary exercise with no impact on the running of time.
Understandably, the EAT commented that this does not mean that continuing voluntary ACAS conciliation is anything other than useful and to be encouraged. Even if voluntary conciliation does not change time limits; it may influence tribunals in deciding whether to allow amendments, grant extensions of time using their discretion, or make other case management decisions.