Commencing early conciliation before the effective date of termination

Before a claimant can make a claim in the Tribunal, they must comply with the statutory duty to contact ACAS and engage in Early Conciliation (EC). When it ends, ACAS sends an EC Certificate and the claimant can issue a claim form.

To ensure claimants are not disadvantaged by engaging in EC (which usually lasts a month), the 3 month limitation period to issue the claim will be extended to take account of the EC period. In unfair dismissal cases the limitation period starts on the last day of employment or effective date of termination (EDT). 

However, a claimant is entitled to make a claim once they have been given notice of dismissal, they do not have to wait until the EDT. There have been conflicting tribunal decisions as to whether the time spent engaging in EC before the EDT is added to the limitation period and thus extending it as it would if EC was triggered after the EDT.

In Chandler and Thanet District Council in 2014, the employee engaged in EC a number of days before the EDT, and the Tribunal interpreted the conciliation provisions as “stopping the clock”. That decision meant that the time limit for all claims to which EC applies would be 3 months “plus the time during which ACAS conciliates”. This was followed in another tribunal case of Myers and Nottingham City Council.

However, Scottish Employment disagreed with the decisions in Chandler and Myers and decided that the proper interpretation of the legislation was to ignore any EC days that fall in a period prior to the EDT, which meant that the EC time before the EDT did not count and extend the limitation. The Tribunal also held that the purpose of the extension was to prevent a claimant being disadvantaged by using up some of the 3 month limitation period engaging in EC. The Tribunal said that there is no disadvantage to a claimant in those circumstances because the limitation period had not started to run.

Thankfully, these opposing views have been resolved by a recent Employment Appeals Tribunal (EAT) decision where an employee had commenced EC on two occasions. The first EC period was during his notice period and the EAT said that as far as that EC period was concerned, the employee was not entitled to the benefit of an extension of time because the “limitation clock could not stop because it had never started”.

So, this case makes it clear that where the employee engages in EC before the EDT and time spent conciliating before the EDT, it does not extend the time limit.

Employees should remember that it is essential to issue a claim form before the limitation period expires. Employers should check the ET1 and review EC certificate to ensure that the claim been presented within the required time limit.

If you have any queries regarding the above, please do not hesitate to contact our Employment team.