The ACAS Early Conciliation procedure (EC) was introduced on 6 April 2014 and became mandatory for claims presented on or after 6 May 2014. 

Before a prospective claimant can institute proceedings, they must comply with the duty to participate in EC.  Participation in EC affects the limitation period. 

In most employment tribunal claims, the limitation period will expire 3 calendar months (minus 1 day) from the act complained of, i.e. dismissal or discrimination. When EC takes place, the limitation date can be extended. 

Section 207B (3) and (4) of the Employment Rights Act set out the formula for working out the new limitation date.

First, it is necessary to identify Day A and Day B.  Day A is the day the prospective claimant contacts ACAS and EC commences. Day B is the day EC comes to an end and the prospective claimant receives the EC certificate.  

Section 207B (3) operates “to stop the clock” during the EC period. For example, if EC lasted for 1 week, then the limitation clock would be stopped for 1 week. 

Section 207B(4), says that when the normal limitation date falls between Day A and 1 month after Day B, the deadline to present the claim is extended to 1 month after Day B. 

It has been assumed (but not clear) that 207B (3) and 207B (4) should be applied separately, so either section 207B (3) applies or section 207B (4) applies.

However, in a recent case, a claimant successfully argued that section 207B(3) and (4) apply cumulatively and that the normal limitation date should always first be extended by section 207B(3) (by the amount of time spent utilising EC) and then extended further under 207B(4) if the extended limitation date fell within 1 month after Day B.

In this case, the employee was dismissed on 2 April 2014.  The normal limitation period expired on 1 July 2014.  The EC procedure commenced on 21 May 2014 (Day A) and concluded on 21 June 2014 (Day B). The claimant presented his claim on 24 July 2014. 

The employer argued that section 207B(4) applied and the limitation date was only extended to 1 month after Day B, 21 July 2014, and therefore the claimant’s claim was out of time.

The Employment Tribunal took the view that the normal limitation date should always first be extended by sub-section 207B(3) and then only be extended further if the limitation was within 1 month of day B.  The Tribunal found that because the EC process took 31 days, the normal limitation date should be extended by 31 days (from 1 July to 1 August 2014) and therefore the claimant’s claim was within time. 

The Employment Tribunal interpreted Section 207 in a way that was the most beneficial to the claimant.  However, this is an employment tribunal decision and is not binding on other employment tribunals. Until the point is decided by a appellate court, respondents could challenge the interpretation of Section 207 if they believe that a claim was not presented in time. Prospective claimants would be well advised not to rely on the “cumulative” approach in the interpretation of section 207B(3) and (4).  

Reggie Lloyd
01206 217347
reggie.lloyd@birkettlong.co.uk