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Early conciliation in practice

BY Gerry O'Hare
Employment Law & HR
BG Purple

Two recent cases have provided clarification on how the Acas Early Conciliation process operates in practice. A mandatory period of conciliation has been a pre-requisite for raising an employment tribunal claim since 2014. However, the effect of this period of conciliation on time limits has thrown up number of tricky grey areas for parties to grapple with.


Gone are the days when it was clear that a claimant had three months (in the vast majority of claims) to raise legal proceedings. Now, the rules are that a potential claimant must contact Acas to begin the EC process within three months. This “stops the clock” on their claim deadline. The EC period usually lasts for a month, but can be extended by a fortnight if parties agree. At the end of the period the claimant’s deadline clock restarts. However, if that then leaves the claimant with less than a month to go, the deadline is automatically extended to a month after the EC period ends. In effect, EC now causes deadlines to be a moveable feast, roughly between 3 and 6 months in length depending on the dates of EC.


The rules, complicated as they are, do not cover every situation. What happens, for example, if EC starts before employment comes to an end? And what happens if there is more than one EC notification? These, and a number of other issues, have been the subject of a number of cases since the rules came into force. Two recent cases have considered the issue of EC stating before dismissal and multiple notifications in particular.


In Fergusson v Combat Stress, the Scottish EAT considered the effect on time limits if EC is started before employment comes to an end. In this case, 28 of the 31 days of EC fell before the claimant’s effective date of termination. It was unclear whether this meant that she could only benefit from 3 days extension as a result of EC, or whether the entire 31 days would be added to her normal limitation period. The EAT held that the correct approach was to add only 3 days to the time limit, meaning that the claimant’s claim was out of time. This issue had been considered twice before in cases before English employment tribunals. In those cases, the ETs took the opposite view and held that the full EC period should be added on to the time bar deadline. As the EAT “trumps” the ET in terms of the authority, the EAT view is to be preferred when calculating when a claim is out of time or not.


Another EAT case, this time in England and Wales, considered the issue of whether multiple EC notifications have an effect on time limits. In Commissioners for HM Revenue and Customs v Serra Garau the claimant started the EC process twice in respect of the same matter. The EAT had to consider whether this second period of EC had the effect of extending the time limit for a second time. I found that it did not. The law requires only one period of mandatory EC before a claim can be raised. The claimant satisfied this requirement with his first notification, and that was the only one which extended time. Incidentally, this case also dealt with the issue of EC beginning prior to the date of termination. In this case, the claimant had begun and ended conciliation before being dismissed, and the EAT found that he therefore could not benefit from any extension of time.


Understandably, employers want to be clear about when their potential liability for employment claims ends, and they are keen to know what the time bar deadline is as soon as the matter has been dealt with internally. Unfortunately, the EC process makes it very difficult to give a firm date because much will depend on the dates of EC which normally takes place after employment has come to an end. However, at least we now have some more clarity on time bar deadlines in these particular circumstances. That being said, employers should always be aware that even if a claim is submitted late, there is scope for the employment tribunal to accept it out of time if the claimant can show good reason for the delay.

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