ACAS Early Conciliation, time limits and employment tribunal claims – EC certificates

Calculating time-limits in the face of the ACAS Early Conciliation regime is a minefield. If a claim is presented late to an employment tribunal this usually means that they are struck out.

A recent case examined whether or not the Employment Tribunals Act allows for more than one Early Conciliation (EC) certificate per “matter” to be issued by ACAS, which could have the effect of extend the time limits for making claim.

What is an Early Conciliation certificate?

The Early Conciliation requirement provides that before a person (‘the prospective claimant’) presents an application to institute relevant proceedings (being an employment tribunal claim) relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.

If no settlement is reached, ACAS will then issue an EC certificate to the prospective claimant which acts as a passport to the employment tribunal. There are some limited occasions where an EC certificate is not required.

Why is it important to have an Early Conciliation certificate?

If an individual does not have an EC certificate where he is required to have one then they will not be permitted to present their claim at the employment tribunal.

Furthermore, where an EC certificate is in operation it acts to effectively ‘stop the clock’ running for limitation 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.

Background to the case

The case of HMRC v Serra Garau considered this issue. On 1 October 2015 the claimant was given notice of termination of his employment by the respondent. The notice was to expire on 30 December 2015.

On 12 October 2015 the claimant contacted ACAS for the first time, using the mandatory early conciliation procedure. On 4 November 2015 ACAS issued an early conciliation certificate. On 30 December 2015 the claimant’s employment came to an end on expiry of his notice period.

On 28 March 2016 the claimant contacted ACAS for a second time. The next day, 29 March 2016, was the day on which, subject to the operation of the early conciliation regime, the primary three-month limitation period would have expired.

On 25 April 2016 ACAS issued a second certificate. One calendar month later, on 25 May 2016, the claimant presented his claim to the employment tribunal for disability discrimination and unfair dismissal.

Questions were raised as to whether or not the claim was in time.

What was the finding of the employment tribunal?

At a preliminary hearing the Employment Judge had to decide whether the claims, or either of them, were in time or out of time. He found that both claims were in time based on the following reasoning:

• there were unusual circumstances on the facts of this case because the first EC certificate was issued before the limitation period had commenced and the second EC certificate was issued during the limitation period and after dismissal
• there is authority for the proposition that the amount of time spent on early conciliation will not count in calculating the date of expiry of the time limit
• there is nothing in the legislation to oppose the view that the clock stopped during the second EC period
• such a conclusion is also within the spirit of the legislation, namely to obviate the necessity of litigation
• to penalise the claimant, or indeed any party, for entering into conciliation would be wrong
• here there is in place a valid second EC certificate issued by ACAS to the claimant and he is entitled to rely on it

Appeal decision

The respondent appealed to the Employment Appeal Tribunal (EAT) arguing that the claimant could not benefit from the statutory provisions relating to the alteration of the time limit as a result of a second, non-mandatory, conciliation process.

The EAT allowing the appeal, and ruling against the employee, held:

• only one mandatory EC process is enacted by the statutory provisions
• the effect of the provision is to prevent the bringing of a claim without first obtaining an EC certificate. Once that has been done, the prohibition against bringing a claim enacted by the Employment Tribunals Act 1996 is lifted
• the scheme of the legislation is that only one certificate is required for ‘proceedings relating to any matter’. A second certificate:
  • is unnecessary and does not impact on the prohibition against bringing a claim that has already been lifted
  • is not a ‘certificate’ falling within the legislation
  • does not trigger the modified limitation regime. Therefore, such voluntary conciliation does not, of itself, modify time limits; though it may influence tribunals which have to decide whether to allow amendments, grant extensions of time, or make other case management decisions.

Practical consequence of this decision

Calculating time-limits in the face of the ACAS Early Conciliation regime is an extremely tricky process. If a claim is presented late the employment tribunals have limited discretion to extend the limitation period which means they are usually struck out if they are not presented in time.

Get in touch

ACAS conciliators will not advise individuals of the time limits relating to their case. It is therefore always best to get specialist legal advice on this aspect of your claim, as early as possible in the process.

If you would like to discuss an employment tribunal issue, please get in touch with a member of our employment law team.

• Ewan Stafford   |   01463 795004