Tribunal time limits and early conciliation

In May 2014, the ACAS Early Conciliation Scheme became compulsory for claimants wanting to bring an Employment Tribunal claim.  The scheme requires that the claimant contacts ACAS and obtains an Early Conciliation Certificate prior to submitting their claim in the Employment Tribunal. The intention of the scheme is to promote settlement and reduce the number of claims that reach the Tribunal. In the event that the scheme does not result in a settlement, the normal Tribunal time limits (which for most types of claim are three months from the dismissal or act in question) are extended. In effect, the Early Conciliation Scheme stops the clock running in terms of time limits. However, the legislation enacting the Scheme and the time limits was not entirely clear and its proper interpretation was the subject of the recently reported case of Booth v Pasta King UK Limited [2014].

In this case, Mr Booth was dismissed on 2 April 2014. He would normally have to submit his claim to the Employment Tribunal within three months, that is by 1 July 2014.  Mr Booth contacted ACAS under the Early Conciliation Scheme on 21 May 2014. No settlement was reached and he received the Early Conciliation Certificate on 21 June 2014. He filed his claim for unfair dismissal to the Employment Tribunal on 24 July 2014. Pasta King applied to have the claim struck out on the grounds that he was outside the extended time limit  which it argued was one month from receipt of the ACAS certificate, that is 21 July 2014.

The Employment Tribunal held that the claim had been brought in time.  They reached this conclusion on the basis that the Early Conciliation Scheme provided for two ways in which time could be extended. The first allowed for the time taken during conciliation to be added to the original time limit. The second simply gave a further month from when the certificate was received.  However, this would only apply where the time limit had or would expire within a month of the certificate being received. The Tribunal held that Mr Booth could choose whichever was most beneficial in the circumstances.

This decision illustrates the complexity which the Early Conciliation Scheme has brought to what was a simple area of law.  Previously, the question was simply whether the claim was brought within 3 months.  Now it is whether the claim was brought within 3 months, and if not is it extended by either of the extension provisions in the legislation?

The decision has sparked some debate, as there is no indication in the legislation that there should be a choice between the two ways of extending the time limit. On a strict reading the one month extension applies where the original time has or is about to end.  It is only when this is not the case that the time spent in the Early Conciliation Scheme is added to the original time limit. Whilst this decision is only one from the Employment Tribunal and is not therefore binding on other Tribunals, it does create uncertainty regarding the application of these provisions and is an area we will be keeping a careful eye on in future.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.