Here’s an update from The Advisory, Conciliation and Arbitration Service to get you thinking…
Early conciliation through ACAS is the initial step in trying to resolve workplace disputes without the need to make an Employment Tribunal claim. Since 5th May 2014, it has been obligatory for all potential Claimants to an Employment Tribunal claim that, before any claim is made, they are required to notify ACAS, and a period of conciliation between the potential Claimant and the potential Respondent follow. Early conciliation can last up to one calendar month starting on the date in which the potential Claimant notifies ACAS, and can be extended by a further 14 days if necessary.
During the conciliation period and up to the date when ACAS issue an Early Conciliation Certificate, the time limit in which to bring an Employment Tribunal claim is suspended or paused. In the recent case of Fergusson v Combat Stress, the effect of ACAS conciliation on the time limit in the circumstance where the conciliation predates the dismissal has recently been examined by the Employment Tribunal.
On 14th July 2016, Ms Fergusson notified ACAS of a dispute with her then employer, Combat Stress. Following this, on 12th August 2016, Ms Fergusson resigned from her employment, which was before she had received the Early Conciliation certificate from ACAS, which was due on 14th August 2016. Save for the Early Conciliation legislation on the effect on the time limit to bring a claim, Ms Fergusson’s time limit to bring a claim at the Employment Tribunal would have expired on 11th November 2016. However, time is paused for calculating the time limit until the date in which the Early Conciliation certificate is issued, in effect this means that the time spent in early conciliation is added on to the usual time limit.
After the submission of the claim, a dispute arose between Ms Fergusson and Combat Stress as to whether her claim had been submitted outside of the time limit, or whether the legislative provisions meant that all the time in which the claim was in Early Conciliation should be added to the time limit, or whether the Tribunal should only add the three days following Ms Fergusson’s resignation and before the receipt of the Early Conciliation certificate.
A Preliminary Hearing regarding the issue was held. The Judge outlined two previous Employment Tribunal cases – Chandler v Thanet District Council and Myers v Nottingham County Council– in which it was held that all the time spent in Early Conciliation should always be added on to the normal time limit, even when the Early Conciliation period begins before time starts to run. However, the Judge did not agree with these cases, and considered that the legislation which provides the time limit is paused during conciliation, effectively is ‘stopping the clock’ and in effect, a clock cannot be stopped if it has not yet been started. Therefore, only the days in the Early Conciliation period which fell within the ordinary time limit for her to bring her claim would be added to the primary time limit (which was three days) and therefore, the Claimant had still presented her claim outside the time limit in which to do so.
However, all was not lost for Ms Fergusson, as the Judge deemed that it was not reasonably practicable for Ms Fergusson to submit her claim within the time limit, as the reason it was submitted late was Ms Fergusson’s solicitor considered all of the Early Conciliation period was added to the time limit, which given the previous case law on this point, it was not negligent for him to think so. Therefore, as the claim was only submitted four days late, the Judge allowed the claim to proceed.
As Early Conciliation provisions are still in their infancy, differences in the interpretation of the legislation is inevitable and this is why cases regarding this are important guidance for any person who is involved, or could be involved, with Employment Tribunal litigation.