Acas early conciliation and time limits: let the confusion begin

Nothing gets employment lawyers going like a vigorous argument over tribunal time limits, and the new system of mandatory Acas early conciliation (EC) has provided the ideal excuse for several arguments. Here’s just one of them.

Where a prospective claimant has filed an EC form with Acas, the time limit for bringing a tribunal claim is paused on ‘Day A’ (the date the claimant submits the form) and restarts on ‘Day B’ (the date they receive an EC certificate). However, if the original time limit would have expired less than a month after Day A, there is a further extension so that the last day for lodging a claim is extended to ‘one month after Day B’. In short, you should never have less than a month after you receive the EC certificate to get your claim in.

HM Courts and Tribunals Service states, in its information leaflet Making a claim to an Employment Tribunal, that if the EC certificate is sent by email on 5 June (and presumably received the same day), Day B is 5 June and the last day for bringing a claim (under the one month extension rule) would be 4 July. Acas are apparently in agreement, on the basis that this is how the ordinary time limits in tribunal cases work (e.g. an employee dismissed on 5 April would normally only have until 4 July to bring a claim: three months less one day).

But is the HMCTS leaflet right? It ignores the ‘corresponding date rule’, a rule of interpretation used for calculating the start and end point of notice periods and other periods of time expressed in months. Under that rule, one month after 5 June is the ‘corresponding date’ in July, i.e. 5 July. This is the approach adopted by Practical Law (OK, I have to declare an interest there), Lewis Silkin (according to the excellent time limits calculator they posted on Twitter a few days ago), and Camilla Palmer who has written an article in ELA Briefing this month about early conciliation. I’m also informed that lawyers at BIS support the corresponding date approach.

Who’s right?

Acas are certainly right in their approach to the primary time limits (three months minus a day) according to the case law, and it would arguably make a lot of sense if there was a common approach to the one-month extension. However, there are good reasons, based on differences in the wording of the relevant statutory provisions, why tribunals should use the corresponding date rule.

The EC legislation requires the claim to be submitted within the period ‘ending one month after Day B’, whereas the primary limitation date in (let’s say) an unfair dismissal case is ‘before the end of the period of three months beginning with the effective date of termination’. The difference is that ‘one month after Day B’ means you start counting on the day after Day B (a rule of interpretation that, according to Lord Diplock in Dodds v Walker [1981] 2 All ER 609, has been ‘consistently applied by the courts since Lester v. Garland (1808) 15 Ves. Jun. 248’). On the other hand, ‘three months beginning with the effective date of termination’ means you start counting on the EDT. This crucial difference was explained by the EAT, in an admirably short judgment, in University of Cambridge v Murray [1993] ICR 460It’s worth a read.

Acas have highlighted that it’s safer to adopt a cautious approach. That, of course, takes no account of the fact that some employees may, if they leave it until the last minute, believe they are one day out of time when they are in fact still within time, so cannot present a claim. An employment judge could conceivably, without the benefit of contrary legal argument (and who can afford legal advice these days?), be led down the same path by the HMCTS leaflet.

Don’t get caught out

In view of this very unfortunate difference of interpretation, claimants should really adopt the cautious line followed by Acas and lodge a claim no later than one month less one day after Day B (4 July in the example above) and not risk leaving it until 5 July. Ultimately it will be for the appellate courts to decide, although ending up in the EAT over this is probably not in anybody’s interests.

With many thanks to Camilla Palmer for our email correspondence over this issue, from which I’ve shamelessly borrowed some of the wording for this post.

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