The correct approach to Early Conciliation has caused some furrowed eyebrows over the years since it was introduced; we’ve written about it at some length before; Late Early Conciliation: Conflicting Tribunal Decisions, and A Practical View from Tribunal: Extending Time because of Early Conciliation.
A fair few solicitors I’ve worked with have used the rule of thumb that time runs out a month after the EC Certificate is issued, and in many cases (but not all) that appeared to be correct. That is probably not going to be a reliable approach now; in Luton Borough Council v Haque, UKEAT/0180/17/JOJ, 12 April 2018, Naomi Ellenbogen QC, sitting as a deputy High Court Judge (leading silk in and Head of these very chambers) has clarified that the approach to extending time limits for Early Conciliation is cumulative not alternative. What does that mean?
The statutory provisions
The relevant statutory provisions are well known. Employment Rights Act 1996, s. 207B (the provisions are the same across the relevant Acts) provides as follows:
(2) In this section –
(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and
(b) Day B is the day on which the complainant or applicant concerned receives … the certificate issued under subsection (4) of that section.
(3) 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.
(4) 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.
The interplay between sub-sections (3) and (4) has not, until now, been clear and, when representing Respondents, I have argued with some success in the past that they are alternative: that where the condition in subsection (4) is satisfied (the un-extended time limit would fall between Date A and a month after Date B), that sub-section applies and you ignore sub-section (3). The EAT has given us a clear steer that that is wrong. You go to sub-section (3) first, and then apply sub-section (4).
What is at stake is made clear on the facts of Haque:
Dismissal: 20 June 2016.
Date A: 22 July 2016.
Date B: 22 August 2016.
Expiry of primary time-limit: 19 September 2016.
One month after Date B: 22 September 2016.
Claim Form: 18 October 2016.
Applying sub-section (3) only:
The ‘period beginning with the day after Day A and ending with Day B’ is 31 days. Adding 31 days to 19 September 2016 takes you to 20 October 2016: in that scenario the claim was in time.
Applying sub-section (4) only
The primary time limit expired between 22 July 2016 and a month after Date B; that period expires on 22 September 2016 so the claim was significantly out of time.
The EAT took the view that, where it applies, sub-section 207B(4) operates to extend the time limit as first modified by sub-section (3). Sub-section (3) applies in every case, as its wording makes clear; the application of sub-section (4) is conditional. There is no ambiguity in the wording, but in any event, the purpose of the provisions was to ensure that prospective Claimants did not lose out because of the requirement to refer the matter to ACAS.
Applying both sub-sections
Applying both sub-sections to the facts of Haque, since the primary time limit was extended by sub-section (3) and therefore taken beyond ‘a month after Day B’, sub-section (4) was not relevant.
Article written by Grahame Anderson.