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Time Limits in Employment Tribunal Claims

Alan Kitto

Earlier this year, the Employment Appeal Tribunal (EAT) gave some much needed guidance as to the correct interpretation of two new clauses in the Employment Rights Act 1996, that relate to how the time limit for filing an Employment Tribunal claim is extended following the introduction of the requirement for an ACAS early conciliation to take place ahead of any such claim.

Prior to the requirement for ACAS early conciliation, the time within which an employee must file an Employment Tribunal claim was, in almost all circumstances, three months less a day from the date of dismissal; if an employee was dismissed on 15th September, they would have until 14th December of the same year to lodge their claim with the Employment Tribunal.

The clauses that caused confusion are:

  • S207B(3) states that: In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.

  • S207B(4) states that: If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

Day A referred to in each clause, is the date the three months less a day period starts, which in cases of unfair dismissal, would be the date on which employment ends. Day B is the date on which ACAS issue an early conciliation certificate, signifying the end of the early conciliation period.

The issue with these two clauses was that, prior to the EAT’s judgement in Luton Borough Council vs. Haque, read separately each could generate a different date on which a claim must be filed.

Applying S207B(3), simply means that, irrespective of when the early conciliation process was started and hence ended, the duration of any early conciliation period would need to be added to the original deadline date, three months less a day from the last date of employment. If early conciliation lasted ten days then ten days would be added, if it lasted thirty days then thirty days would be added etc.

Applying S207B(4), the deadline would depend on when early conciliation started and ended but would always guarantee a month after early conciliation had been completed for a claim to be lodged with the ET.

Under this second clause, if early conciliation started a matter of days after the last date of employment and lasted a month, because there would already be more than a month left at the end of early conciliation before the original deadline, the deadline date would not be extended. However, if early conciliation started a few days before the original deadline date, the new deadline would be a month after the early conciliation ended.

In Luton Borough Council vs. Haque, the EAT has confirmed that S207B(3) and S207B(B) are not alternatives but instead should be applied sequentially.

This means that the correct deadline date is calculated as follows:

  1. Calculate the original deadline date, three months less a day from the date employment ends;

  2. Calculate the time lapsed between Day A and Day B, the period of early conciliation;

  3. Add the number of days in ‘2’ above to ‘1’ above to generate the new deadline date;

  4. Calculate Day B plus a calendar month;

  5. If the date in ‘3’ above is earlier than the date in ‘4’ above, then the date in ‘3’ above is the deadline date;

  6. If the date in ‘3’ above is later than the date in ‘4’ above, then the date in ‘4’ above is the deadline date

Example 1: Employment ends on 15th June 2018 and early conciliation takes place for 31 days between 1st July 2018 and 31st July 2018.

  • Day A is 15th June 2018

  • The original deadline date is 14th September 2018;

  • Because early conciliation lasted 31 days, the new deadline would be 14th October 2018;

  • Day B is 31st July 2018, therefore Day B plus a calendar month is 31st August 2018;

  • Because 31st August 2018 is before 14th October 2018, the correct deadline will be 14th October 2018.

Example 2: Employment ends on 15th June 2018 and early conciliation takes place for 31 days between 1st September 2018 and 30th September 2018.

  • Day A is 15th June 2018

  • The original deadline date is 14th September 2018;

  • Because early conciliation lasted 31 days, the new deadline would be 14th October 2018;

  • Day B is 30th September 2018, therefore Day B plus a calendar month is 30th October 2018;

  • Because 30th October 2018 is after 14th October 2018, the correct deadline will be 30th October 2018.

,For more information on this or any other employment law matter, please get in touch.