If ACAS issues a second early conciliation certificate in respect of the same matter, does this extend the time for making a claim? No, said the EAT in HMRC v Garau.
Mr Garau was given notice of termination of his employment by HMRC on 1st October 2015, expiring on 30th December 2015. On 12th October 2015 he contacted ACAS for the first time, using the mandatory early conciliation procedure. On 4th November 2015 ACAS issued an early conciliation certificate. On 28th March 2016, he contacted ACAS for a second time. The next day, 29th March 2016, was the day on which the primary 3 month limitation period expired. On 25th April 2016 ACAS issued a second certificate.
On 25th May 2016 Mr Garau presented his claims for disability discrimination and unfair dismissal. In deciding whether the claims were presented in time the employment tribunal held that he could rely upon the second early conciliation certificate to "stop the clock". In its opinion the claims were issued in time.
But HMRC contended that the second certificate was unnecessary, and had no effect on the running of time for limitation purposes. The limitation period of 3 months therefore expired in the normal way on 29th March 2016. This was because the first early conciliation certificate did not affect the running of the primary limitation period, since it was issued before the limitation period had started to run at all.
The EAT agreed. Construing s.207B of the Employment Rights Act 1996 (and its counterpart in s.140B of the Equality Act 2010) the legislation allowed for only one certificate to be required for "proceedings relating to any matter". A second certificate was unnecessary and did not assist the claimant. The second, voluntary certificate could not modify the limitation period.
That was not to say that voluntary conciliation through ACAS was to be discouraged. But it could not, in this case, modify the time limits concerned.