Acas early conciliation effect on tribunal time limits and the decision of Luton BC v Haque
Navid Pourghazi
Navid Pourghazi considers today’s judgment by the Employment Appeal Tribunal (EAT) in Luton BC v Haque EAT/0180/17/JOJ, which concerned how the ACAS early conciliation provisions affect Tribunal time limits, and summarises the simple approach to take in calculating time limits following the most recent case law, drawing from submissions made by the appellant’s counsel in the case (Nathaniel Caiden).
Introduction
In nearly all claims before Employment Tribunals, the employee must obtain an early conciliation (“EC”) certificate before presenting their ET1. However, since the advent of EC, employees who obtain an EC certificate benefit from an extension to the usual time limits. Depending on the claim being brought, these extensions are set out in s.207B(3)-(4) Employment Rights Act 1996 (“ERA"), s.140B(3)-(4) Equality Act 2010 and/or Art.8B(3)-(4) Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994.
For all these statutory provisions there are, in essence, two methods by which time is extended. Take the ERA as an example:
“(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.” This is commonly referred to as the ‘Stop the clock’ approach.
“(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.” This is commonly referred to as the ‘add one month’ approach.
In relation to the above, Day A is when ACAS are contacted under EC and Day B is the date that the EC certificate is issued.
The issue is how these two methods interact. Are they alternatives and does one take precedence over the other? Is the “time limit” referred to in the opening words of subsection (4) the original time limit (e.g. within 3 months in the case of an unfair dismissal complaint) or is it the time limit after it has already been modified by subsection (3)?
It is this interaction that the EAT case of Luton BC v Haque had to grapple with and resolve.
The decision in Luton BC v Haque
The easiest way to explain the facts and competing effects of the time limits arguments in Haque is by means of the below table.
Effective date of termination (when time started running)
Day A
Day B
Ordinary / Original time limit
Day B + 1 month
Time elapsed between Day A and Day B
ET1 presented
‘New’ ACAS extended time limit under s.207B(3) ERA; 31 days plus 19 September
s.207B(4) ERA,
Applying Appellant’s methodology
Does the original time limit (ie 19 September 2016) expire between Day A and 1 month after day B?
20 June 2016
22 July 2016
22 August 2016
19 September 2016
22 September
31 days
18 October 2016
20 October 2016
Yes, so 22 September 2016 is time limit
Applying the Respondent’s methodology
Does the new time limit (ie 20 October 2016) expire between Day A and 1 month after day B?
No, so 20 October 2016 is time limit
One can see that if the Appellant’s argument was correct, then the limbs are alternatives and that it is the ‘original time limit’ that is being referred to in the opening words of s.207B(4). This would have meant that the claimant’s claim in Luton BC v Haque would have been out of time.
The EAT however found that this was not the correct construction. It held that the provisions should be construed as follows:
The provisions are sequential, so you always start with s.207B(3) ERA (and its equivalents);
The time limit that s.207B(4) ERA is referring to in its opening words is the one that has already been modified by s.207B(3) ERA and not the ‘original’ time limit;
This means that in every case there can only ever be one time limit answer produced;
Accordingly, in this case, the s.207B(4) ERA provision was not trigged, because the time limit extended by s.207B(3) fell outside of Day A and 1 month after Day B. Therefore, the actual time limit was 20 October 2016, making the claim in time.
Summary of the correct approach as to the case law
With this conclusion in mind, it appears that case law has clarified a standard methodology to calculating time limits. The approach set out below was originally presented by Counsel for the Appellant (Nathaniel Caiden) at the appeal.
Step 1 – Work out when time starts to run.
Step 2 – Work out the ‘original time limit’; that is the time limit that would apply before any ACAS EC extension. Ordinarily, this is within 3 months – so 3 months less 1 day.
Step 3 – Did time start to run prior to Day A? [Note that (i) if more than one early conciliation certificate is obtained as against a particular respondent, it is the first that is used (HMRC v Garau UKEAT/0348/16/LA and Treska v The Master and Fellows of University College Oxford UKEAT/0298/16/BA) and (ii) that none of the ACAS EC extension provisions are relevant if time has expired before Day A].
If so, the entire time elapsed between Day A and Day B is ‘not counted’. The relevant date can be ascertained by adding this elapsed time to the ‘original’ time limit
If not, only the period after which time has started to run will be ‘not counted’ (HMRC v Garau UKEAT/0348/16/LA). The relevant date can be ascertained by calculating the time elapsed from when time starts to run to Day B, and ‘adding that period’ to the ‘original time limit.
Step 4 – Based on the above approach in Step 3 (a) or (b), the new time limit to be considered in light of s.207B(4) ERA (or equivalent in other statutes) is ascertained.
Step 5 – Add one calendar month to Day B.
It is clear that it is one calendar month that needs to be added, because the corresponding date rules applies – see Tanveer v East London Bus & Coach Company Ltd UKEAT/0022/16/RN. Accordingly, 25 September would have 25 October as the corresponding date, and for 31 August the corresponding date would be the last day in September which is 30 September.
Step 6 - Does the ‘new time limit’ (i.e. Step 4) fall on or before this date (namely, one calendar month after Day B)? If so, this is the relevant time limit by which the ET1 must be presented. If not, the time limit remains as set out in Step 4.