The easy-to understand rule is that at a minimum, you have one month after the issue of the EC certificate to bring your claim.
There are strict time limits set out in legislation for employment tribunal claims. Claimants risk their claims being struck out if they do not comply with time limits including the Acas early conciliation deadline.
In cases of unfair dismissal, s111(2) Employment Rights Act (ERA) 1996 states: ‘An employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal- (a) before the end of the period of three months beginning with the effective date of termination.’
With discrimination, s123 of the Equality Act (EA) 2010 states: ‘(1) Proceedings may not be brought after the end of- (a) the period of three months starting with the date of the act to which the complaint relates.’
Stop the clock provision
s207B(3) of the Employment Rights Act provides that the normal time-limit is paused whilst the early conciliation period is ongoing (that is, between the lodging of the EC (Day A) and the date you receive the EC certificate (Day B).
Adding a month provision
s207B(4) of the Employment Rights Act provides that where the original time limit expires during the period beginning with Day A (lodging of the EC) and ending one month after Day B (your receipt of the EC certificate), the new time limit expires instead at the end of the period. This means that the claimant can file their EC form at the latest on the date their time limit expires. In this case, they will not benefit from the clock pausing under s207B(3) but they will get the extra month under s207B(4).
- The usual time limit for making an employment tribunal claim is three months less one day from the date your employment comes to an end.
- In redundancy pay and equal pay cases, the time limit is six months less a day.
- The legal jargon for the time limit is limitation.
- When you lodge your early conciliation form with Acas, the limitation clock is paused until the conciliation period ends (the end is marked by the issue of the conciliation certificate). So, if your conciliation period lasts for three weeks, your new time limit is three months plus three weeks, minus one day.
- You also have one month from the issue of the certificate to bring your claim.
- If the new dates arrived at by the above two methods are different, you have the later date as your new time limit.
- Acas may suggest to a claimant that they are out of time but have no power to reject an EC form. But this doesn’t mean that a claim is in time if you got the EC extension period wrong.
- Outside your limitation date (or extended limitation date), your only hope of bringing a tribunal claim is to get your claim in with an application that a judge to exercise their discretion to extend time. For an unfair dismissal case, the judge will ask whether it was reasonably practical for you to bring a case. Short of a health problem that prevented you, such an application is not likely to succeed, and ignorance of the law is no excuse. In a discrimination case, the test is more employee-friendly; it is whether it is ‘just and equitable’ (fair) to extend time. If your case looks strong, then you might succeed and pleading ignorance of the law may help you.
- In either case, the principles laid down in the case of Selkent will be useful. The relevant ones are:
- What was the cause of the delay in making the application? Was the employee legally advised? Are there any new facts or new information that meant a claim wasn’t considered earlier? Did a health problem prevent it? Was the claim brought as soon as the problem was over?
- The paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. For example, has evidence been destroyed or wiped? Have memories faded? Or is there no real effect to bringing the claim late? Is it very late or slightly late?
- Is the employer being put to additional cost or suffering some other prejudice (other than having to defend a claim which it wouldn’t have otherwise had to do) because of the lateness?
- Day B (the date you are deemed to have received your early conciliation certificate) is the same day if you receive it by email (which you will, if you gave your email details on the EC form). If Acas post it to you, Day B is the second working day after it was sent.
- Even if your EC certificate doesn’t reach you (gets lost in the email system or in the post), it takes effect for purposes of the time limits.
- Even if you are making a claim out of time, you will need your early conciliation certificate to complete the ET1.
If I start EC whilst I’m still at work do I still benefit from an extension of time?
In a tribunal case called Fergusson the judge held that any days of EC that fell before the date on which the relevant limitation period began (eg before dismissal, in an unfair dismissal case) should not be added on to the limitation period, because it is not possible to stop the clock for the purposes of s207B(3) before the clock has even started.
He said that the purpose of the provision is to stop a claimant being disadvantaged by having the usual time period for bringing a claim reduced because they took part in early conciliation and this reason doesn’t apply before the limitation period has started.
However, this is not a binding authority and while this seems to be a sensible decision, there is a conflicting case called Chandler that says the opposite.