News & Insights

How late is early enough?

Jackie Denham explains the new clarification on extending the time limits for bringing a claim.

Ordinarily Early Conciliation (EC) must be undertaken by a prospective claimant before employment tribunal proceedings can be issued. An EC certificate is issued at the end of the EC period.

In most employment cases, claimants have three months’ minus one day in which to bring a claim.

Current legislation allows claimants to extend the time limit to bring a claim in two ways:

1. The clock will be stopped between the day EC is commenced (Day A) and the day the claimant receives their EC certificate from Acas (Day B).

2. Where the limitation date falls in the period between Day A and one month after Day B, the deadline to present the claim will be extended to one month after Day B.

It has been unclear whether it was the intention for methods 1 and 2 both to be applied in some circumstances, or whether they are intended to operate as alternatives.

In a recent case, the claimant, Mr Haque, was dismissed by his employer on 20 June 2016. He contacted Acas on 22 July 2016 and was issued an EC certificate on 22 August 2016. Mr Haque presented his claim form on 18 October 2016. In its response, the employer argued that all of Mr Haque’s claims were out of time.

Under the first method of extension above, the limitation period was extended to 20 October 2016, meaning the claim would be in time. However, under the second method of extension, one month after Day B was 22 September 2016, which would mean the claim had been presented 26 days out of time.
The employer argued that methods 1 and 2 were alternatives and that method 2 took precedence.

At a preliminary hearing, the ET concluded that methods 1 and 2 were to be applied sequentially meaning that Mr Haque’s claims had been presented in time. This decision was appealed to the Employment Appeal Tribunal (EAT).

The EAT upheld the tribunal’s decision and concluded that his claims had been brought in time. The EAT considered that the current legislation intends to prevent prospective claimants being disadvantaged by the time taken to comply with the EC requirement.

The case has clarified a long standing uncertainty about the time limits for bringing a claim in the context of EC. Employers should beware that the outcome of the case will enable claimants the maximum opportunity to commence proceedings.