Early conciliation that takes place prior to dismissal should not extend limitation
The Tribunal has clarified that time spent in early conciliation before the limitation period starts should not extend the time limits for bringing a claim.
As we know, before a prospective claimant lodges a claim with the Employment Tribunal, they must engage the ACAS Early Conciliation (EC) process in an attempt to settle matters at an early stage. To ensure the claimant is not disadvantaged, the limitation period for bringing a claim at the Employment Tribunal is effectively paused while this process is ongoing and then re-starts once it is concluded. Effectively a ‘stop the clock’ provision. There has however been some uncertainty as to what should happen to time spent in EC that takes place prior to the ‘effective date’ (i.e. the date of dismissal or the date of the discriminatory act).
This was considered in Fergusson v Combat Stress. Here, Ms Fergusson was dismissed with effect from 12 August 2016. She had referred the dispute to ACAS on 14 July 2016 and her EC certificate was issued on 14 August 2016. Ms Fergusson submitted claims for unfair dismissal and non-payment of wages on 18 November 2016. Combat Stress argued her claims were out of time and any claim should have been brought by 14 November 2016 (i.e. 3 months less one day from the date of dismissal plus the 3 days after her dismissal where EC was still taking place).
The Employment Tribunal agreed with Combat Stress and held that you cannot stop a clock that has not even started to tick. Given that the purpose of the stop the clock provision is to ensure that claimants are not disadvantaged by engaging in the EC process, the Tribunal could not see that a claimant would be disadvantaged by undertaking EC before the limitation countdown had begun.
That said, the Tribunal allowed Ms Fergusson’s application for an extension of time on the basis it was not reasonable for her to present the claim in time given all this uncertainty and that her solicitors had not been negligent in advising her that her claim could be brought on 18 November.
This decision provides a sensible approach to calculating limitation periods in what has become a dark art following the introduction of the EC process. However, it is only a first instance decision and it is not binding on other tribunals, merely persuasive. Nevertheless, claimants would be wise to follow the approach in Fergusson to avoid having their claim rejected for being brought out of time.