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 major consequences.