Since 6th April 2014, before ‘relevant proceedings’ can be issued in an Employment Tribunal, prospective Claimants must first contact ACAS and provide them with certain basic information (referred to as ‘prescribed information’ to be given ‘in the prescribed manner’ (i.e. in accordance with the legislation)) to enable ACAS to explore the possibility of resolving the dispute by conciliation- Employment Tribunals Act (‘ETA’) 1996 section 18A(1) (inserted by Enterprise and Regulatory Reform Act 2013 section 7(1)). This applies to all claims issued on or after 6th May 2014.
It should be noted that Early Conciliation does not affect ACAS’s existing duty to conciliate in claims that have already entered the employment tribunal system under section 18C of the ETA 1996.
The requirement to enter early conciliation applies to Claimants who intend to bring ‘relevant proceedings’ in accordance with section 18A of the ETA 1996 and includes those listed in section 18(1) of the ETA 1996 (as amended by the Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2014. It in fact means that the majority of claims in which individual employment rights are alleged to have been infringed will have to go through this process. However, there are a few exemptions: cases involving multiple Claimants, where there is a mix of relevant and non-relevant proceedings, where the Respondent has contacted ACAS in relation to a dispute, where there is an application for interim relief, and finally, where the proceedings are against the Security Service, Secret Intelligence Service or GCHQ.
If both parties consent to early conciliation, ACAS has up to one calendar month (the early conciliation period) in which to facilitate a settlement- rule 6(1) Early Conciliation Rules of Procedure. Once ACAS concludes that a settlement of the dispute, or part of it, is not possible, or the early conciliation period expires without a settlement having been reached, the ACAS conciliation officer must issue an early conciliation certificate. However, the period for early conciliation may be extended once for up to a maximum of 14 days by a conciliation officer provided that the prospective Claimant and Respondent consent to the extension and the conciliation officer considers that there is a reasonable prospect of achieving a settlement before the expiry of the extended period- rule 6(2) Early Conciliation Rules of Procedure.
If a resolution is reached within the original early conciliation period or extension, then the conciliator will record the agreement on an ACAS form called a ‘COT3’.
So if the dispute does not settle and conciliation is unsuccessful, this obviously gives a Claimant an additional thing to do before he can issue his ET1: what does that mean for limitation?
The Employment Tribunal is a creature of statute and therefore it can only hear claims brought to it in accordance with the statutory provisions which give it jurisdiction. Therefore the strict limitation periods set out in the legislation must be adhered to, or Claimants risk their claims being struck out.
In cases of Unfair Dismissal Section 111 Employment Rights Act (‘ERA’) 1996 states: ‘(2) 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.’
In cases of Discrimination, section 123 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.’
Provision is made for extending the statutory limitation periods for instituting tribunal claims to allow for early conciliation- section 207B ERA 1996. The basic rule is that the amount of time spent conciliating will not count in calculating the date of expiry of the time period; it is called the ‘stop the clock’ provision for this reason. (Although it must be noted that if a Respondent (rather than a Claimant) requests early conciliation, these provisions will not automatically apply.)
However, the precise calculation can be complicated: you count the day after the day on which the Claimant made contact with ACAS until the day ACAS issued the certificate. (But note- the early conciliation certificate is deemed received on the day sent if sent by email. If sent by post it is deemed received on the day on which it would be delivered in the ordinary course of the post. Assuming first class post is used, the general rule is that the item is treated as having been received on the second day after the date it is posted, excluding Sundays and bank holidays. This date is important as it enables the employment tribunals to determine whether any claim that is subsequently made is presented in time. The method of sending should be apparent on the face of the certificate itself.)
The time spent conciliating is to be added to either the day on which limitation would have expired, or the date the certificate was received, whichever is the later.
So in a case where a prospective Claimant was dismissed on 21st February 2014 and ordinarily limitation would have expired on 20th May (3 months less one working day later), he entered into Early Conciliation on 15th May and his certificated was issued on 27th May; thus 16-27th May (or 12 days) should be added on to the limitation date of 27th May, giving a new limitation date of 8th June 2014.
In any event, there is a further extension of time provision in the legislation, which means that limitation would not expire until one month after receipt of the Early Conciliation Certificate, as long as the Claimant contacted ACAS within their original time limit. A claim, which was out of time, to begin with will not be corrected by reference to ACAS under these provisions.
If a claim is out of time, the usual discretionary extensions apply- i.e. whether it is ‘just and equitable’ to extend time in accordance with section 123 EA 2010, or that it was ‘not reasonably practicable’ for the claim to have been brought in time, in accordance with section 111 ERA 1996.
It should be noted that these provisions are relatively new and far from straightforward. We are just starting to see litigation on the interpretation of them emerging now, and I would at this stage always advocate a cautious approach to limitation, and for those considering bringing a claim to seek legal advice in good time.