Stopping the Clock: Acas Early Conciliation

There is a strict three-month time limit for an employee to bring certain claims in the Employment Tribunal for example, unfair dismissal, whistleblowing, discrimination, victimisation or harassment to name a few.

In 2014, a change was implemented which required the potential dispute to be referred to Acas before a claim is filed with an Employment Tribunal. If a settlement is not reached or the Early Conciliation (“EC”) ‘prescribed period’ expires, Acas will issue an EC Certificate. This was imposed on parties as an attempt to encourage conciliation before litigation ensued.

To ensure that Claimants are not disadvantaged in respect of the time limit to bring a claim, an EC Certificate extends a Claimant’s limitation period to take in to account the time spent trying to resolve the matter during the EC period.

er, what happens when an employee obtains two or more EC certificates? Can the Claimant choose which EC Certificate he or she wishes to rely on when extending their limitation period?

In short, the answer appears to be No.

In the case of Commissioners for HM Revenue and Customers v Garau, the Employment Appeal Tribunal held that the EC provisions set out in the Employment Rights Act 1996 and the Equality Act 2010 do not allow for more than one EC Certificate to affect the time limit on the ‘same matter’. If the second certificate is unnecessary, it will have no effect and will be unable to modify the limitation period for bringing a claim. As such, the limitation date should be based upon the time spent during the EC period of the first certificate.

The implication of the ruling is significant for prospective claimants, principally because a second EC Certificate will not further extend a claimant’s limitation period. As Mr Garau found, if a limitation period to an employment claim has expired you may be restricted from bringing such claim. Given the strict time limits in Employment Tribunal proceedings, it is important to understand the limitation period.