Early conciliation clarified
When a claimant wants to initiate legal proceedings against their employer, they have a duty (under section 18A Employment Tribunals Act 1996 (“ETA 1996”)) to first contact ACAS for early conciliation of the matter.
The claimant is only able to proceed with the claim once they have obtained a certificate of early conciliation from ACAS.
In employment tribunal proceedings, there is a time limitation to bring any claim, three months less one day from the date of the matter in respect of which the proceedings are brought. This limitation period is, however, extended to take into account the period of early conciliation so that the potential claimant is not prejudiced by having to contact ACAS. In order to identify the relevant limitation date and the relevant extension, statute uses two days for identification, Day A and Day B:
- Day A is the day on which the potential claimant contacts ACAS in relation to the matter in respect of which the proceedings are brought; and
- Day B is the day that the potential claimant receives the ACAS early conciliation certificate.
Under section 207B Employment Rights Act 1996 (“ERA 1996”):
- to work out when the time limit expires, the period starting with the day after Day A and finishing with Day B should not be counted; and
- if a time limit would expire during the period beginning with Day A and ending one month after Day B were it not for the extension, then the time limit expires instead one month after Day B.
Until now, there has been conflicting case law about the application of the principles in section 207B ERA 1996 above where all, or part, of the early conciliation period has occurred prior to the start of the limitation period and where a potential claimant has written to ACAS for a second time to request a second early conciliation certificate.
In the case of Commissioners for HM Revenue and Customs v Serra Garau, the Employment Appeal Tribunal considered the question of how the time limit should be extended where ACAS has issued two early conciliation certificates for different periods and where the first period took place before the limitation period had even commenced.
The Employment Appeal Tribunal held that the ETA 1996 and associated legislation only create one mandatory early conciliation process in every claim. The provisions are in place to prevent potential claimants from bringing a claim without first obtaining an early conciliation certificate, but once this certificate has been obtained there is no duty to apply for a second certificate. A certificate given in relation to a second period of early conciliation is not a certificate required by the statutory provisions. Day A only refers to the date of mandatory notification of the claim to ACAS and Day B only refers to the mandatory certificate received. Accordingly, a second notification or certificate is not mandatory and so applying for a second certificate does not work to extend the time limit further.
The case provides welcome comment on early conciliation periods and confirms that:
- legislation only requires one period of early conciliation; and
- that the statutory provisions extending time limits to take account of early conciliation only apply to the one mandatory period.
For more information contact our employment team on 0345 070 6000.