A question often asked regarding Early Conciliation and timescales for issuing claims, is:
“What happens where new claims arise following the issue of an Early Conciliation certificate, but before proceedings have been initiated. Can a Claimant rely on the original certificate for the purposes of submitting a claim to the Employment Tribunal?”
Recent application before the Tribunals
In a recent case in the Employment Tribunal, a Claimant pursued claims of disability discrimination at Early Conciliation which resulted in an Early Conciliation Certificate being issued in May 2019. However, further acts of discrimination arose after this date and therefore further conciliation was entered into resulting in a second Early Conciliation Certificate in July 2019. When the claim was issued in the Employment Tribunal, the Claimant sought to rely on the first Early Conciliation Certificate which was subsequently contested by the Respondent. A preliminary hearing was therefore held to determine whether the Employment Tribunal had jurisdiction to hear the claims.
Section 18A(1) of the ERA 1996[1], does not prohibit an Early Conciliation certificate from predating subsequent claims, nor does there appear to be any suggestion in the Early Conciliation Regulations 2014 that an EC certificate issued some time before events which subsequently give rise to a claim would not be valid, subject to the operation of time limits.[2] Where claims arise following the issue of an Early Conciliation certificate, Claimants will not usually be required to go through a further Early Conciliation process and can include such claims within the ET1.[3]
In reviewing its position, the Tribunal considered the construction of s.207B ERA 1996 which establishes the method of how to work out when a time limit set by a relevant provision expires. In contrast, s.207B(4) expressly applied only “where a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B“. in this case, as the expiry date fell within the period specified under s.207B(4), this extended the time limit in the manner provided.
[1] Employment Rights Act (‘ERA’)
[2] Mortimer v The Golden Holiday Company Ltd and Conley ET/2300983/15
[3] Science Warehouse Ltd v Mills UKEAT/0224/15
By Julie Duane – St Philips chambers (Birmingham).
[1] Employment Rights Act (‘ERA’) [1] Mortimer v The Golden Holiday Company Ltd and Conley ET/2300983/15 [1] Science Warehouse Ltd v Mills UKEAT/0224/15