Where ACAS Early Conciliation begins before the time limit starts running on a claim, how should time be calculated?

Background

In this case, which was recently decided by the Employment Tribunal, the Claimant Miss Myers started early conciliation before she was given notice of dismissal for redundancy.

The usual time limit for bringing an unfair dismissal claim would start at the point of dismissal, and any claim would normally have to be brought within 3 months of this date.

However, the early conciliation rules mean that the time limit for bringing a claim can be extended to the length of the period of conciliation in most cases. The question here was whether the period of conciliation before the dismissal would count towards the extension of time, or whether the time limit should only be extended by the period of conciliation after dismissal.

On one view, the legislation is quite clear that the time taken to conciliate “should not be counted” when working out the time limit. As counting would only start after the point of dismissal, this argument would say that only that portion of it should go towards extending time.

However, in this case, the Employment Tribunal decided that the whole period of conciliation should be counted towards the extension of time. The reasoning for this was that it would not be proper for an employee issuing their grievance promptly to be given less time to present their claim than an employee who had delayed in doing so.

Comment

The decisions on how to apply the rules relating to extension of time for early conciliation have not yet reached the Employment Appeal Tribunal. That means there is no binding authority to guide us. So far the decisions have all been to give claimants the most generous interpretation, and employer respondents need to bear this in mind.

Claimants, however, also need to bear the uncertainty in mind, and should always err on the side of caution, certainly until we have some binding authority from the Appeal Tribunal.