Early Conciliation and Time Limits
Almost all Employment Tribunal claims must be started within 3 months (3 months less 1 day) from the act you want to complain about. Employment Tribunal claims are also required to comply with rules on pre claim conciliation by ACAS, called Early Conciliation.
- It is compulsory to go through the Early Conciliation procedure before starting a claim.
- However, it is voluntary whether you conciliate or not as either the claimant or the respondent in any claim can refuse to participate in it.
Conciliation is a process whereby ACAS helps find a solution to a dispute that both parties will find acceptable instead of going to Tribunal. More information on conciliation is available at www.acas.org.uk. ACAS conciliation is independent, confidential and free. However, ACAS do not give advice about how good a claim is or what compensation might be obtained.
Prior to submitting a Tribunal claim to an employment tribunal, you need to submit an Early Conciliation form (“an EC Form”) to ACAS containing basic details of the prospective claimant and the prospective respondent. If there are two prospective respondents, then two EC forms should be submitted. The form can be submitted either by post, by calling ACAS and giving the information by telephone, or online to ACAS’ website at www.acas.org.uk. The basic details will be the claimant’s name and address and the respondent’s name and address.
If submitting on line, you should receive an automated email acknowledgment. You need this so as to calculate time limits, see below. An ACAS officer will then be appointed to the “case” and that ACAS officer will try to promote a settlement. The first step is that the ACAS officer will contact the prospective claimant to ask if he or she would like ACAS to conciliate the dispute.
If you agree to conciliation, ACAS will attempt to contact your (ex) employer to ask if it agrees to conciliate the dispute. If your (ex) employer also agrees the ACAS officer will try to promote settlement between you two. This can go on for one calendar month (this period can be extended by a further 2 weeks if the parties agree). If no settlement is reached, either because:
- One or both parties don’t agree to conciliation;
- A party cannot be contacted;
- The parties can’t agree on settlement terms or one or both withdraws from negotiations; or
- The month in which settlement will be promoted comes to an end, without an agreement being reached
ACAS will issue a certificate. This certificate will contain a unique reference number which you must then put in the ET1 form which will be used to start a claim in the employment tribunal.
You are assumed to have received an electronic certificate on the day it is sent by ACAS. If the certificate is sent by post, you are assumed to have got it 2 days after it is sent. The date of receipt of the certificate is important in calculating time limits, see below.
If you decide to bring a claim which was not included in your certificate they will need to think very carefully about whether they need to submit a new EC Form to include this claim before issuing proceedings. If the new claim is related to claims already covered by the EC certificate (for example, you want to bring a victimisation claim after they have submitted a discrimination claim) it is unlikely that an Employment Tribunal will require an additional certificate for this claim. Where the claims are unrelated, a new EC Form should be submitted. Where there is uncertainty as to whether the claims are related, it may be sensible to start the EC process again and submit a new EC Form.
Almost all Employment Tribunal claims must be started within 3 months (3 months less 1 day) from the act you want to complain about.
The Early Conciliation procedure makes some changes to the normal time limit rules. These are often referred to as “stop the clock” provisions and their purpose is to prevent claimants from being disadvantaged by having the period for bringing a claim reduced because they have entered Early Conciliation.
- During the Early Conciliation procedure (the day after the date the claimant submits the EC form to ACAS until receipt of the certificate from ACAS or deemed receipt), the time limit period for the employment tribunal claim stops running.
- If the normal time limit for bringing the claim would expire during the Early Conciliation procedure or within a month of it ending, the time limit for putting the claim in will instead end one month after the claimant receives the certificate from ACAS or deemed receipt of that certificate.
However, tribunals have ruled that the “stop the clock” provisions will not apply to a claimant exploring Early Conciliation in the period before their employment has terminated. This is because the usual three month time limit will not normally have started before a claimant’s employment has terminated. Please seek further advice if you are unsure whether the “stop the clock” provisions apply in your case.
- The claimant’s normal deadline for lodging her claim is 10th June. She submits the EC form on 28th May to ACAS. The ACAS certificate is issued by email on 7thJune. The new deadline for her to start her claim is 7th July.
- The claimant’s normal deadline for lodging her claim is 10th June. She submits the EC form on 9th June. The ACAS certificate is issued by email on 8th July. The new deadline for her to start her claim is 8th August.
- The claimant’s normal deadline for lodging her claim is 10th June. She submits the ACAS form on 15th April. The ACAS certificate is issued on 20th April. The deadline for her to start her claim is now 15th June.
Note that a respondent can also ask for Early Conciliation. However where the respondent asks for it, this will not change the time limitation periods for the claim.
- It’s a good idea to get advice about the likely value and strength of your claim before entering into Early Conciliation.
- You must bear in mind time limits for starting your claim during Early Conciliation and be aware that the “stop the clock” provisions are unlikely to apply if you are exploring Early Conciliation prior to the termination of your employment.
- If you want to bring additional claims which are not covered by your EC certificate, get advice on whether you will need a new EC certificate to bring that claim.
- There are a number of reasons why settlement of a claim is usually advantageous to you.
If you want to complain about several separate issues within the same Claim, you must count the time from each action. So time will run from the date of the earliest event.
For example, if the employer decided on 8 September 2017 not to promote you due to your pregnancy and on 3 October 2017, dismissed you because of your pregnancy, the time-limit for keeping both Claims in time is 7 December 2017.
You can refer to earlier incidents which are out of time as supporting evidence.
And in some situations, the discrimination amounts to a continuing action, in which case, time continues to run until the discriminatory action stops or you leave the employment.
The tribunal has limited discretion to allow in late Claims (those outside the time-limit). The test for this is different depending on whether the claim is about discrimination or something else. If you are worried that you are out of time to make a claim act quickly and seek specialist advice.
It will take into account various factors including the reasons the Claim is late, how late it is, whether the employer is prejudiced by the lateness, and whether it looks like a good Claim. A Claim may be accepted outside the time limit if facts have come to light after the time limit has expired which the Claimant knew nothing about. For example, a woman made ‘redundant’ while on maternity leave discovers some months after her dismissal that her post was not really redundant at all and has been filled by someone else. In such a case, the tribunal must consider whether or not it was reasonable for the Claimant to realise she had a claim before the new facts came to light.
Even if a worker and employer are going thought an internal grievance or disciplinary procedure, this does not extend the time limit by which the Claim must be made to a tribunal. You should be wary of long-drawn-out procedures by employers in an attempt to take the worker outside the time limit for making a Claim.
It is hard to get the tribunal to allow in late Claims. Never let a deadline pass relying on this.
Time limits can be tricky and it is often a good idea to get specialist advice.