Whenever you are faced with an actual or potential employment tribunal claim, the first thing to look at is whether the claimant will/has lodged their claim within the limitation period for the specific claim(s).
If they have not, it can be an easy target to submit an application to the tribunal to request that the claim(s) be dismissed by the tribunal for being out of time.
Since 2014, before a claimant can lodge a claim in an employment tribunal, they must commence the ACAS Early Conciliation (EC) process within their original limitation date. Once the ACAS EC process has been concluded, ACAS produce an EC Certificate.
Until the ACAS EC Certificate is provided, the three months time clock for the original limitation date is essentially paused. However, once the ACAS EC Certificate is provided, a calculation needs to be done to discern the revised limitation date. This calculation has been the source of headaches for employment lawyers, parties to claims and tribunals alike. Part of this confusion arises from the two ways in which you can ‘count time’ following the ACAS EC process.
Calculating time under 207B(3)
Counting time under 207B(3) of the Employment Rights Act 1996 states that those days between Day A (the date that the claimant commenced the ACAS EC process) and Day B (the day the ACAS EC Certificate is provided) are counted and added onto the original limitation date.
Claimant 1 is dismissed on the 2 June. The original limitation date to bring an unfair dismissal claim is therefore 1 September.
Claimant 1 starts the ACAS EC process on 5 July (Day A), but the process is brought to an end on the 27 July (Day B). There are 22 days between Day A and Day B. The original limitation date is extended until the 23 September 2018.
Calculating time under 207B(4)
Counting time under 207B(4) means that where the original limitation date would fall between the period of Day A and one month after Day B, then the original limitation date is extended to the end of the period instead.
Claimant 2 is dismissed on the 3 May. The original limitation date to bring an unfair dismissal claim is therefore 2 August.
Claimant 2 starts the ACAS EC process on 4 July (Day A) and is brought to an end on the 27 July (Day B). Because the original limitation date (2 August) falls within the time period specified above, the limitation period would be extended to 27 August.
Sequential calculations, not alternative
But how do the two methods of calculation work together? Very good question! The recent case of Luton Borough Council v Haque looked at this point.
The outcome of Haque was that the two methods of calculations are sequential, not alternative. But fear not, we are not talking about adding months of time for claimants’ to formulate their thoughts and level claims. No, the purpose is to always ensure that there is one month of time, roughly the length of a ‘standard’ ACAS EC process, for Claimants to present their claim(s) to tribunal. So whichever method of calculation gives the claimant a greater length of time to lodge their claim(s) will apply.
Turning to the above examples, applying the other method of calculation to either would result in the a detriment to the claimant by shortening their limitation period.
So when does this kick in? Well, check out Example 3 below.
Claimant 3 is dismissed on the 25 April. The original limitation date to bring an unfair dismissal claim is therefore 24 July.
Claimant 3 starts the ACAS EC process on 29 June (Day A). The ACAS EC process runs its course and the ACAS EC Certificate is provided on the 23 July (Day B).
Calculating the extension of time under 207B(3) would give 24 days and so the limitation period would expire on 17 August. Whereas calculating the extension of time under 207B(4) gives an extension until 23 August. The latter is the correct calculation.
If Claimant 3 had started the ACAS EC process on 25 May (Day A) and had ended on the 25 June (Day B) then clearly 207B(3) would take precedence, because it would extend the limitation period to 25 August whereas 207B(4) would only extend the period until 25 July.
It can be difficult to get to grips with ‘counting time’ but it is an essential weapon in all of our commercial client’s arsenals. By doing so, you equip yourselves with a potential shield to defend claims.
If you have any concerns about active or potential claims, please get in touch email@example.com