News & Legal Updates
Sign up to news & legal updates
It is almost 2 years since ACAS early conciliation became a mandatory pre-claim requirement for prospective claimants in the employment tribunal. As anticipated, the early conciliation process has resulted in a number of cases concerning the impact on employment tribunal time limits and other practicalities surrounding the lodging of tribunal claims.
Tribunal time limits
For the vast majority of claims in the employment tribunal, the employee must lodge their claim within three months (less one day) of the event complained of. For example, a person seeking to challenge a dismissal effective from 24 December would require to lodge their tribunal claim (ET1) no later than 23 March in the following year. In that three month window, the claimant also requires to engage in ACAS early conciliation.
ACAS conciliation – extension of tribunal time limits
A prospective claimant must submit their early conciliation form to ACAS before the expiry of the three month time limit for lodging a tribunal claim (so on or before 23 March in the example above). Provided that the ACAS form is submitted to ACAS before the expiry of that three month limitation period, the prospective claimant will have at least a month from the expiry of the ACAS conciliation period to lodge their tribunal claim. The “clock” for the purposes of the three month time limit is paused during early conciliation and there is a statutory extension to the three month time limit at the end of early conciliation. This can, in some cases, result in the employee having more than one month following the expiry of the conciliation period in which to lodge their claim. However, the safest course of action for claimants is to lodge tribunal claims within one month of receipt of the ACAS certificate (note that if the certificate is sent by email, the date of receipt is the date on which the email is sent).
What does one month mean?
The EAT has recently examined the correct approach to this one month extension in Tanveer v East London Bus & Coach Company. Does the one month extension include the date of receipt of the ACAS certificate itself (i.e. 25 May to 24 May) or not (so, 25 May to 25 May)? The EAT decided that the corresponding date principle should be applied. Therefore, if the ACAS certificate is dated 30 June, the tribunal claim should be lodged no later than the corresponding date in the following month – 30 July in this instance. Mr Tanveer’s claim was lodged on 31 July and was thus out of time by one day.
Take care when lodging ET1
Claimants and claimant lawyers should take extra care when diarising the time limits for lodging an ET1 after early conciliation. Another note of caution can be taken from Sterling v United Learning Trust, where the claimant entered the wrong early conciliation number on her ET1 due to a typo. The claim was rejected by the tribunal and the EAT did not interfere with this harsh decision. In contrast, the EAT has also held that naming the wrong respondent on an early conciliation form will not necessarily lead to a tribunal rejecting the ET1 where the respondent is named correctly in the ET1 (and incorrectly in the ACAS notification). This happened in Mist v Derby Community Health Services NHS Trust and the EAT declined to reject the claim despite the error, noting that such an approach could lead to Draconian arguments. Nonetheless practitioners should of course endeavour to correctly name the parties in both the ACAS form and the ET1.
If in doubt, take advice. A minor oversight might have majorconsequences.
The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.
Blackadders takes all reasonable steps to ensure that the content of this site is accurate and up to date. The site is not, however, intended as a substitute for seeking legal or other professional advice but rather as an informative guide to the services provided by Blackadders and topical legal developments. Site visitors should always seek advice tailored to their specific situation. Consequently, Blackadders accepts no responsibility for any loss or damage suffered by anyone acting or failing to act on the basis of information contained on this site. Downloading of material contained on this site is at the user’s own risk and all necessary virus checks must first be carried out by the user. Blackadders is not responsible for the material found on any web sites linked to this one and links to this site may only be made with Blackadders prior consent.
Blackadders owns the copyright in this blog and all material contained on it. The material on this site may be downloaded for personal use only and must not be altered. Otherwise, Blackadders’ written consent is required before any material on this site is reproduced, copied or transmitted in any way.
Information passed to us via this site is kept confidential and will not be disclosed to third parties except if authorised by you or required by law.
© Blackadders LLP 2011
Members of the Law Society of Scotland. Authorised to conduct Investment Business under the Financial Services & Markets Act 2000 by the Financial Services Authority.
Blackadders Solicitors is a trading name of Blackadders LLP, a limited liability partnership, registered in Scotland No SO301600 whose registered office is 30 & 34 Reform Street, Dundee, DD1 1RJ. Reference to a ‘partner’ is to a member of Blackadders LLP.Back to News & Legal updates