In order for a Claimant to “institute relevant proceedings” (i.e a claim to the employment tribunal), the prospective claimant must comply with the duty to commence Acas Early Conciliation. In such cases, the limitation date is extended to take into account the period of conciliation. The primary limitation time period in order to bring a claim in a tribunal is three months less one day from the date of dismissal.
Normally, the period is extended by the time between the day the prospective claimant contacts Acas, (or when their EC form is received by ACAS), and the day in which the prospective claimant receives the EC certificate. This is often referred to as a “stop the clock provision” for the purposes of limitation. The rules are slightly different if the prospective claimant contacts Acas in the last month of limitation. In the case of Fergusson v Combat Stress, the prospective claimant (Ms Fergusson) commenced Acas Early Conciliation a month before the effective date of termination. Ms Fergusson’s employment was terminated on the 12th August 2016.
She contacted Acas on the 14th July 2016. The normal time limit in which to bring a claim would have ended on the 11th November 2016. The Early Conciliation certificate was issued on the 14th August 2016. Ms Fergusson submitted a claim to the Tribunal on the 18th November 2016. The employment tribunal held that the claim was out of time as she had submitted Acas Early conciliation prior to the primary limitation date and therefore the clock had not ‘stopped’ until the early conciliation period crossed with the primary limitation period.
Therefore it was only the days (12, 13 and 14 August 2016) within the early conciliation period that would otherwise have been in the primary limitation period that were to be considered for the purposes of calculating limitation. The claim should have been submitted on or before the 14th November 2016. The Tribunal Judge said that days before the effective date of termination which are spent in early conciliation are disregarded when calculating limitation periods.
Limitation periods and Acas Early conciliation are complicated, and if deadlines are missed it is highly possible that a claim will be out of time and will not be allowed to proceed. Please do not hesitate to contact the team in order to get some advice on this complex and crucial area.