The legal position is that a prospective claimant cannot commence proceedings in the employment tribunal unless they have complied with the duty to participate in ACAS early conciliation. If a claimant engages in the EC procedure, the time limit to bring a claim is extended by the period between the day on which a prospective claimant contacts ACAS, or submits the relevant form and the day on which the prospective claimant receives an EC certificate (issued when the conciliation period comes to an end).
By virtue of Section 207B of the Employment Rights Act 1996, the time limit to bring a claim is extended, as the limitation period is effectively stopped for the period in which the parties participate in the early conciliation process. In this way, the period between day A ending with day B is not counted for the purposes of calculating when a time limit expires (Section 207B(3)).
The two claimants in these cases were employed by Nottingham City Council and were given notice of dismissal on the grounds of redundancy on 11 March 2015, with their dismissals taking effect later on 8 June 2015.
On 3 June 2015, prior to the effective date of their termination, the employees contacted ACAS to start the EC process. No conciliated settlement was reached and the EC period came to an end on 3 July 2015, following which the claimants presented claims to the tribunal on 5 October 2015.
The question arose over whether the claimants could get the benefit of the extension in time to bring a claim between the date when they started the early conciliation process and the granting of the certificate (between 3 June 2015 and 3 July 2015 or alternatively, whether they could only take the benefit of the extension for the period beyond the date of their date of termination).
The respondents argued that they should not get the benefit of the extension for the full period, as six of the days (3 to 6 June) fell before the claimants were dismissed.
The employment tribunal found that the purpose of the EC provisions was to drive a larger number of employment disputes into being settled through ACAS, rather than contested in tribunal. Relying on Government guidance, which said that the submission of the early conciliation form to ACAS “stopped the clock” on the time period for the submission of a claim, the tribunal found that the prospective claimants were entitled to the full period, even through five days pre-dated the date of dismissal.
Although only a first instance tribunal claim, it is helpful to see the way that tribunals are thinking on this subject and the balance of the cases so far seems to be in favour of granting the claimants the benefit of the full period of early conciliation, whether that starts before they have been dismissed or not.
The cases we have had so far have been first instance employment tribunal cases and therefore not binding on any other tribunal and an appeal in the higher courts is awaited.
Mist v Derby Community Health Services NHS Trust UK EAT/0170/15
The Employment Appeal Tribunal (EAT) has, however, considered the early conciliation process in the context of early conciliation certificates. As stated above, in order for a prospective claimant to bring a claim in the employment tribunal, they must start the early conciliation period and obtain an early conciliation certificate.
Under the employment tribunal rules, a claim will be rejected by an employment tribunal if the name of the respondent on the claim form is not the same as the name of the prospective respondent on the EC certificate. Claimants are required to enter the number of the early conciliation certificate into their claim form.
In Mist, the EAT refused an argument that a claim could not be accepted by a tribunal if the name on the EC certificate was not precisely that of the respondent and allowed a party to apply to amend the claim to include a further respondent, without the need to comply with further EC requirements.