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Philomena Price
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Early Conciliation: only one extension of time limit is possible

by Philomena Price | May 18, 2017 |
Alarm Clock

Commissioners for HM Revenue and Customs v Serra Garau

Background

Before a prospective claimant can make most claims in an Employment Tribunal, they must comply with the duty to contact ACAS for Early Conciliation (EC). Provided the claimant complies with that duty and obtains an EC certificate, they can proceed with instituting their claim.

The limitation period for relevant proceedings is extended to take into account the EC period. In order to determine how the limitation period will be extended by EC, it is necessary to identify Day A and Day B:

  • Day A is a day on which the prospective claimant contacts ACAS by telephone or the day on which ACAS receives their EC form.
  • Day B is a day on which the prospective claimant receives the EC certificate.  This will be the date on which ACAS sends the EC certificate by email to prospective claimant or, where it is not possible to use email, the date on which it will be delivered in the ordinary course of the post. 

The extension of time arises in two circumstances:

The first is “in working out when a time limit expires…the period beginning with the day after Day A and ending with Day B is not to be counted”.  This is often described as a “stop the clock provision” (subsection 207B(3) Employment Rights Act 1996 (ERA 1996).

The second is that “if a time limit... would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period” (Subsection 207B(4) ERA 1996). 

There have been conflicting Employment Tribunal decisions concerning the effect of the first of the above two circumstances where all or part of the EC period occurs prior to a limitation period commencing (which, for example, in unfair dismissal claims) would be the Claimant’s effective date of termination).  Some Tribunal decisions have held that the first sub-section requires you to simply add to the normal limitation period the number of days in the period starting the date of Day A and ending with Day B.  Other decisions have held that time spent on EC before the limitation period has commenced, does not count towards the extension of time.

Extension of Time: Tribunals General Discussion

For most types of claim, the Employment Tribunal will have some discretion to extend the time limit.  The Tribunal may do so:

For unfair dismissal claims, where it was not reasonably practical to present the claim within the original time limit but it was subsequently presented within such further period as the Tribunal considers reasonable.

For discrimination claims, if the Tribunal considers that it will be just and equitable to do so.

This general discretion is exercisable in addition to the time limit as extended by the EC extension of time provisions.

Commissioners for HM Revenue and customs v Serra Garau UKEAT/0348/16

In this recent EAT case, the EAT had to decide whether a claimant would benefit from a extension of time for a second period of EC in respect of the same matter and whether a period of EC occurring before time began to run extended the time limit.

Facts

On 1 October 2015 HMRC gave Mr Serra Garau notice of termination of his employment, which duly expired on 30 December 2015.  A period of EC took place entirely during the notice period.  Mr Garau contacted ACAS on 12 October 2015 and ACAS issued an EC certificate on 4 November 2015. 

Mr Garau complained of unfair dismissal and disability discrimination.  The primary limitation period for his complaints expired on 29 March 2016.  The day before, 28 March 2016, Mr Garau contacted ACAS again.  On 25 April 2016, ACAS issued a second EC certificate.

Mr Garau presented his claims to the Tribunal on 25 May 2016.  The Tribunal had to decide as a preliminary issue whether the claims had been presented in time.  

Relying on the second period of EC, Mr Garau argued that Day A was 28 March 2016 and that Day B plus one month was 25 May 2016.  The primary limitation period expired within that period and, he argued, he therefore benefitted from the extension of time under sub-section 207B (4) of the Employment Rights Act 1996 and the equivalent provisions in the Equality Act 2010.  He had presented his claim on the last day of the extended time limit and his claim was accordingly in time. 

HMRC argued that the claimant can only benefit from one extension of time, this being in respect of the first period of EC.  Furthermore, in Mr Garau’s case, that first period of EC had all taken place prior to the limitation period commencing and in those circumstances, it did not stop the limitation clock. 

Decision

The EAT found that there is only one mandatory EC process. The purpose of the provisions is to prevent the bringing of a claim without first obtaining an EC.  Once that has been done, the prohibition against bringing a claim is lifted.  A second EC period is purely voluntary.

A certificate for a second period of EC is not an EC certificate within the meaning of the legislation.

A second certificate does not trigger the modified limitation regime and is a voluntarily certificate.

It was decided in this case that Mr Garau did not benefit from an extension of time in respect of the first EC period under the EC statutory provisions.  This was because his mandatory EC period had concluded before the limitation period for his claims began.  The EAT commented that the limitation clock could not stop under the first certificate because it had never started.  It was decided that Mr Garau had presented his claim out of time.

This highlights the fact that in this case any period of time of early conciliation before time starts to run does not extend the time limit. 

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.

This article incorporates material originally published on https://uk.practicallaw.thomsonreuters.com  [Jan 2016] and is reproduced with the permission of Thomson Reuters.

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