Our next case concerns ACAS Early Conciliation. Early Conciliation (EC) was introduced in 2014 as a means to settle claims before issuing ET proceedings. Any employee wishing to pursue a claim must have been issued an EC Certificate. Initially this meant the parties must have gone through a 30 day EC period (can be extended by a further 14 days) but now parties can have the certificate issued without an EC period.
Luton Borough Council v Haque
In light of that, For most employment issues, Claimants have 3 months less a day to bring a claim. For example, an employee dismissed on 2nd Jan would have until 1st April to issue proceedings. This is known as the limitation date. Section 207B of the Employment Rights Act says that if the period of early conciliation expires before the limitation date then the time spent in conciliation will be added to the limitation date. If the conciliation period ends after the limitation date, then the employee will have 30 days from the date of the EC Certificate to issue a claim.
today’s question is:
Will a period of EC extend the limitation date?
If so, by how long?
Mr Haque, the Claimant, was dismissed by Luton Borough Council, the Respondent, on 20th June 2016. His limitation was the 19th September 2016. The Claimant began Early Conciliation on 22nd July 2016 and was issued an EC Certificate on 22nd August 2016.
The Claimant issued proceedings on 18th October 2016. The Respondent argued the claim was out of time, it held that because the EC period ended on 22nd August the Claimant had until 22nd September to issue a claim. The ET held that because the EC period had ended before the limitation date, the EC period was added onto the limitation, making it 20th October 2016. The claim was in time.
The Respondent appealed but the EAT rejected the appeal. The ET was correct to find that because the EC period ended before the limitation, the amount of days the EC period lasted for should be added to the limitation date.
The takeaway point:
Early Conciliation will impact a Claimant’s limitation date. Depending on when the EC period started, ended, and how long it lasted for will all impact the limitation date for issuing proceedings. The key thing to remember is that if the EC period ended before the limitation date then the limitation date will be extended by the amount of days spent in EC, if the EC period ended after the limitation date then it will be extended by 30 days regardless of how long the EC period lasted for.
Below is a table to help determine limitation dates based on an employee who was dismissed on 2nd January 2018.
|Limitation Date Pre-EC||Date EC began||Date EC ended||Actual Limitation Date|
|1st April 2018||3rd January 2018||3rd February 2018||1st May 2018
arguably 2nd May 2018
|1st April 2018||31st March 2018||14th May 2018||14th June 2018|
|1st April 2018||2nd February 2018||2nd March 2018||29th April 2018|
|1st April 2018||2nd March 2018||2nd April 2018||2nd May 2018|
It Might be worth adding that there’s another trap, which is that if you start EC before the EDT, the days of EC before the EDT don’t count to extend the limitation period. E.g.
1st April 2018 30th December 2017 30th January 2018 29th April 2018
(not 1 May).