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In Luton Borough Council v Haque, the Employment Appeals Tribunal clarified the procedure that should be adopted when calculating the limitation date for issuing a claim following Acas Early Conciliation.

Initiating the Acas Early Conciliation procedure

In the vast majority of employment claims, claimants are obliged to initiate the Early Conciliation procedure before issuing a claim. They must do so before the primary limitation date (usually three months less one day from the cause of action) and Early Conciliation has the effect of extending that limitation date based on how many days are spent in the process.

Section 207B(3) and (4) of the Employment Rights Act 1996 – there is equivalent wording in the Equality Act 2010 and this decision will apply there also – sets out how extensions are to be calculated:

“(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.

(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.”

In relation to the above, Day A is when Early Conciliation is started and Day B is when the Early Conciliation certificate is deemed to have been received.

Employment Rights Act

Luton Borough Council argued that 207(B)(3) and (4) of the Employment Rights Act provided two separate potential limitation dates, whereas Mr Haque argued that the provisions should be applied sequentially and that claimants would have the benefit of whichever subsection provided the longer extension.

Extensions after Acas Early Conciliation

The Employment Appeals Tribunal agreed with the claimant and confirmed that, when calculating extensions following Early Conciliation, 207(B)(3) of the act should be applied first (therefore those days that do not count are added to the primary limitation date) and then only if that extended date falls within the period set out in 207(B)(4) should that subsection to be applied.

Points for employers to note

The effect of the above case is to provide a claimant with a minimum of one month after the conclusion of Acas Early Conciliation to issue a claim.

If Early Conciliation is unsuccessful and a certificate is issued, employers must ensure that they add the days in Early Conciliation falling within 207(B)(3) to the claimant’s initial primary limitation date and only apply 207(B)(4) if this would provide the claimant with a longer extension than that

provided by 207(B)(3).

It is important that employers are aware of how the above legislation needs to be applied: if an employer did not to do so and applied in error to strike a claim out for being out of time, it would not only mean unnecessary legal fees for dealing with the application but they would also risk being liable to pay the claimant’s costs as well.

For more information on Acas Early Conciliation or any of the other issues raised in this article, please contact Jonothan Scollen in the Leeds Employment team by emailing [email protected] or calling 0113 368 7583.