The Commisioners

Happy Easter! Tomorrow is Good Friday so we are sending out our case law update a day early – better than chocolate, right? Last week’s case was about discrimination by association and was our first foray over to Northern Irish law.

Today’s case is about ACAS Early Conciliation. Early Conciliation was introduced as part of the Enterprise and Regulatory Reform Act 2013 on 6th May 2014. We’re sure most of you have engaged in this process at one point or another and perhaps even settled a claim via COT3.

Prospective Claimants cannot submit an Employment Tribunal Claim without first obtaining an Early Conciliation Certificate from ACAS. The few cases on this topic indicate that the EAT initially took a harsh stance towards Claimants who did not follow the process correctly but has since softened this attitude.

Claimants must begin Early Conciliation within three months of being dismissed or the act complained of. Once Claimants have had their Early Conciliation Certificate, they usually have 30 days to submit their Tribunal Claim.

Therefore, today’s question is:

Does getting a second Early Conciliation Certificate extend the amount of time to bring a Tribunal Claim?

Mr Garau, the Claimant, was given notice of termination by HMRC, the Respondent, on 1st October 2015. The Claimant’s employment was set to terminate on 30 December 2015. On 12th October 2015, before the termination of his employment, the Claimant contacted ACAS and initiated the Early Conciliation process.

The Early Conciliation Certificate was issued on 4th November and the Claimant’s employment terminated on the agreed date. On 28th March 2016, he contacted ACAS again, the 29thMarch was his three-month limitation period. ACAS sent the Claimant a second certificate on 25 April and he lodged a Tribunal Claim on 25 May 2016.

The Respondent argued that the Claimant was out of time because his Tribunal Claim was lodged nearly six months after the first Early Conciliation Certificate was issued. They argued the second certificate did not affect the running order of the litigation and thus did not ‘stop the clock’ and allow the Claimant further time to bring a claim.

The ET held that the spirit of EC was to try and settle issues without timing out the Claimant. It allowed the Claim to proceed. The Respondent appealed and the EAT allowed the appeal. It held that only one certificate was needed for any single matter. It added the second certificate was voluntary and unnecessary and thus should not extend the time to bring a claim.

The takeaway point:

No, a second certificate for the SAME matter does not extend the limitation period to bring a claim. This echoes our previous case on this issue, Compass Group v Morgan. In that case, the Claimant resigned after the certificate was issued and the Respondent argued that she needed a second certificate to cover the resignation.

Both these cases prove that Claimants clearly need only one certificate to bring a claim about an employment matter. Subsequent certificates are voluntary and not necessary but the EAT judge in HMRC v Garau did add that parties should always try to resolve issues via ACAS, even after the claim has been issued.