In the first of a series of guest blogs from CIPHR’s employment law partner, esphr, we focus on Acas early conciliation (EC) and a recent case that highlights the minefield of calculating time limits in the face of the EC regime. It is important for employers to be alert to time limits prospective claimants have if they wish to bring a claim in the employment tribunal.
Acas is an independent, impartial organisation who liaise with both parties to an employment dispute with regard to possible settlement.
The mandatory EC procedure has been in force since 6 April 2014.
Unless an exemption applies, a prospective claimant must comply with the EC process before they can issue an employment tribunal claim. The process is commenced by the prospective claimant either telephoning Acas or filling in the EC form online.
If no settlement is reached, Acas will then issue an EC certificate to the prospective claimant which allows them to proceed with an employment tribunal claim.
Extension of limitation period
Generally, a prospective claimant has three months less one day from the date of the act they are complaining about to file a claim in the employment tribunal (i.e. their time limit period). The prospective claimant must comply with the EC process within this period.
When the EC process is in operation it acts to effectively ‘stop the clock’ running for time limit purposes during the conciliation period and, additionally, ensures that a prospective claimant has at least one month between the conclusion of EC and the deadline in which to submit a claim.
If a claim is presented late to an employment tribunal this usually means that they are struck out.
The Employment Tribunal, however, does 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.
In the case of Commissioners for HM Revenue and Customs v Serra Garau UKEAT/0348/16, the Employment Appeal Tribunal (EAT) considered how the time limit for a claim should be extended when Acas had issued two EC certificates, for different periods, and where the first period took place before the limitation period had commenced.
On 1 October 2015, HMRC gave Mr Serra Garau notice of termination of his employment. His notice was due to expire on the 30th December 2015. A period of EC took place during his notice period. (Mr Serra Garau contacted Acas on 12 October 2015 and Acas issued an EC certificate on 4 November 2015.)
On the 30th December 2015, Mr Serra Garau’s employment ceased. Mr Serra Garau’s primary time limit in the Employment Tribunal was the 29th March 2016. The day before, 28 March 2016, Mr Serra Garau contacted ACAS again. On 25 April 2016, Acas issued a second EC certificate.
Mr Serra Garau presented his claim to the tribunal on 25 May 2016. The tribunal had to decide as a preliminary issue whether the claims had been presented in time.
At a preliminary hearing an Employment Judge came to the view that the Claimant was entitled to rely upon the second EC certificate, the time limit for lodging the claim was modified and that therefore the claims were in time. HMRC appealed and the EAT allowed the appeal for the following reasons:
- There was no requirement for Mr Serra Garau to obtain a second EC certificate and he had fulfilled the legal requirements by going through the mandatory process once already.
- The second EC process was therefore voluntary and did not have the effect of extending time for Mr Serra Garau’s claims.
- A certificate for a second period of EC is not an EC certificate within the meaning of the statutory provisions.
- Mr Serra 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 Serra 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 (for his unfair dismissal claim) or the just and equitable provisions (for his discrimination claim).
This case provides helpful clarification on the time extension provisions, particularly when the period of EC starts prior to the termination of employment.
In relation to the second EC certificate, this case should not be seen as undermining the potential benefit of conciliation. The EAT’s decision deals with the mandatory EC process, deciding that there is only one and that the extension of time provisions only apply to that one mandatory process. However, the EAT commented that voluntary conciliation through Acas remains valuable and that it may influence tribunals who have to decide whether to allow amendments to pleadings, grant extensions of time under other provisions, or make other case management decisions.
It is also important to remember that in July 2017, the Supreme Court declared employment tribunal and EAT fees to be unlawful. The immediate consequence of that decision is that prospective claimants in employment tribunal cases cannot now be required to pay fees.
It is likely that there will be a rise in the number of employment tribunal claims going forward. With this in mind, the EC process will be even more valuable to employers. In the past where employers may have adopted a ‘wait and see’ approach to see if the prospective claimant has the funds to issue proceedings, going forward this approach will not be such a useful tactic and instead employers should focus on the reality of the situation and whether the prospective claimant has a potential claim or not.