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:
  1. 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?
  2. 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?
  3. 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.

You must lodge an EC in order to bring a claim. But whether you allow the conciliator to liaise with the employer to broker a settlement is a tactical decision for you.

• It is vitally important to get all the names and addresses right. You should take the employer’s name from your employment contractYes
  • It is simple, fast and Agreement is reached in 80% of cases.
  • Acas conciliators are trained to bring about settlement between parties in disagreement.
  • A conciliated settlement at this stage avoids the hassle and cost of bringing a tribunal claim.
  • It buys you time to decide whether to bring a claim. Acas may refuse to delay issuing a certificate any longer unless you actively participate in a conciliation.
  • It can help you to resolve a dispute even if you are not thinking about bringing a claim against your current employer.

  No

  • Conciliators are not allowed to give legal advice, so any settlement may not reflect whether you have a good case.
  • Lawyers may do a better job for you in negotiating. If you intend to use lawyers later on to negotiate, a poorly-handled conciliation may do more harm than good for your case.
  • Your employer may obtain information from you about your legal position, your evidence and your negotiating position than you want to provide.
  • You may obtain a better deal by keeping your powder dry and holding out, showing strength and going straight to a claim. Better settlements are often achieved later in the tribunal process.

  Also

  • You do not need to take part in EC if you are one of a number of claimants bringing a group claim (class action).
  • Or if you are making the rare claim to be reinstated in your job as ‘interim relief’ (within a week of your dismissal).
  • Or where the employer has started an EC and a certificate has been issued, you do not need to start another one.

Beware of the following:

It is vitally important to get all the names and addresses right. You should take the employer’s name from your employment contract

• Bear in mind that the business may have changed hands without you receiving a new contract.
• If you don’t have an employment contract, recent correspondence from your employer may help you.
• A company’s name will end in Ltd or Plc; a limited liability partnership ends in Llp. If you worked for a non-limited partnership you should be suing the partners directly eg “Mr A Bloggs and Ms B Smith trading as The Partnership”.
• If you use any other formulation, you may be using the name of a trading style rather than a legal entitity.
• You can check company and limited liability partnership names at Companies House.
• If you don’t get this right, you may find that you have sued or issued an EC against the wrong entity after you have run out of time to correct it. But the judge may allow a name-change once the case is underway if this happens.
• If the employer engages with conciliation (rather than you just asking for the certificate at the outset) they will find it harder to defend a claim on the basis that the EC certificate was issued against the wrong legal entity.
• If you got name/address information wrong in the web form you can correct it when Acas telephones you.
• It can therefore be a sensible idea to lodge an early conciliation against several companies that look like good candidates for employer, eg Acme Ltd, Acme Holdings plc etc.
• The extension of time limits doesn’t apply:
  • If the employer starts early conciliation rather than you.
  • If your employer is GCHQ or similar agency.
• Don’t forget to lodge an early conciliation against all the respondents you wish to sue. For example, in a discrimination case, against the individual discriminator and the employer.
• The EC form cannot be amended once submitted. If you made an important mistake (eg to do with your identity or that of the respondent), you should lodge another certificate.
• There is only room for one EC certificate number on an ET1 claim form. If you have ended up with several certificate numbers, add any extra ones in the ‘additional information’ box on the ET1. But the experience of practitioners is that judges are taking a relaxed view about permitting the EC number on an ET1 to be changed where there is uncertainty about the employer’s identity.
• The Acas early conciliation deadline that counts (see here for the effect of EC on time limits) is the date you are deemed to receive your EC certificate. If it goes missing before it reaches you, your clock is still ticking, so bear that in mind if you are close to the line on your time limit for bringing a claim.
• The law is not clear if the ET1 can include events that took place after you spoke with Acas. If you are still in work you may be suffering acts of victimisation, for example. It is safer to contact Acas again and lodge another EC and another ET1 or make an application in your existing ET case.
• You cannot start a second EC conciliation and get a second extension to the time-limits.
• You can use Acas EC purely to extend the time-limit for bringing a claim but don’t tell Acas that you are doing that. They are legally obliged to end the conciliation if so. If they don’t, then technically the employer (if it finds out) can claim that the conciliation (and any time limit) should be set aside.