The Tricky Issue of Time Limits and ACAS Early Conciliation
Cases concerning the extension of time limits in the Employment Tribunal and ACAS Early Conciliation procedures continue to occupy the Employment Tribunals with this latest case decided by the Employment Appeal Tribunal where the employee went through a second round of early conciliation and attempted to rely on the second round to extend his time limit.
Before an employee can make a claim in the Employment Tribunal, in the majority of cases, they must comply with the obligation to contact ACAS and go through the Early Conciliation process.
When submitting their claim form an employee must state on the form the Early Conciliation certificate number, which is provided by ACAS.
As time limits in the Employment Tribunal are already fairly short (three months in most cases), the time limit is extended to take into consideration the time that the parties are engaging in the Early Conciliation process. There are two ways the time limit is extended; by adding the number of days that Early Conciliation is ongoing to the original time limit or by adding one month from the date Early Conciliation is concluded, depending on when the process is completed.
The Employment Tribunal also have the discretion to extend the time limit in certain circumstances;
• if it was not reasonably practicable to present the claim within the original time limit;
• for discrimination claims, if it would be just and equitable to do so.
The employee in this case Mr Garau was employed by HMRC as an administrative assistance until he was given notice to terminate his employment in October 2015. Mr Garau’s notice was due to expire on the 30th December 2015.
On the 12th October 2015 Mr Garau contacted ACAS to start the Early Conciliation process and on the 4th November 2015 the certificate was issued. On the 30th December 2015 Mr Garau’s employment ceased. Mr Garau’s primary time limit in the Employment Tribunal was therefore the 29th March 2016.
On the 28th March 2016 Mr Garau contacted ACAS again and started a second round of Early Conciliation. A second certificate was issued on the 25th April 2016 and on the 25th May 2016 Mr Garau made a claim for disability discrimination and unfair dismissal.
An issue arose as to whether either of Mr Garau’s claims were submitted to the Employment Tribunal on time.
At the Employment Tribunal, the Judge decided essentially that in the spirit of the Early Conciliation process Mr Garau’s claims should be allowed.
HMRC appealed the decision on the basis that Mr Garau could only benefit from one extension of time and this was from the first Early Conciliation certificate.
The Employment Appeal Tribunal decided that there was no requirement for Mr Garau to obtain a second Early Conciliation certificate and he had fulfilled the legal requirements by going through the mandatory process once already.
The second Early Conciliation process was therefore voluntary and did not have the effect of extending time for Mr Garau’s claims.
The Appeal Tribunal went as far as to conclude that a second certificate for a second period of Early Conciliation is not an Early Conciliation certificate within the meaning of the statutory provisions.
This meant that for Mr Garau did not benefit from any extension of his time limit as the mandatory Early Conciliation period had concluded before the time limit for his claims had even begun (30 December 2015).
As a result, Mr Garau’s claims were out of time and the case was sent back to the Employment Tribunal to decide if an extension of time should be allowed under the reasonable practicability or the just and equitable provisions.
Points to note
This case is an interesting one in that the decision means that an employee who engages in ACAS Early Conciliation and which is concluded before their employment terminates will not benefit from any extension of the primary time limit.
It illustrates the complexities and different scenarios that are arising with regards to the Early Conciliation process.
Action to take
1) If you find yourself defending a claim in the Employment Tribunal you should carefully check the relevant dates and time limits as you may be able to seek to have the claim dismissed if it is out of time;
2) Seek advice if you are unsure of the relevant time limits.
Employment Appeal Tribunal – Commissioners for HM Revenue and Customs v Serra Garau
You can read the full judgement here