Key takeaways
Early conciliation timing is critical
Pre-termination EC doesn’t extend dismissal claim deadlines.
Tribunal confirms strict time limit rules
Only post-termination EC pauses the legal clock.
Employers and employees must check key dates
Accurate timeline analysis is vital for valid claims.
Before bringing an unfair dismissal claim, an employee must first take part in mandatory early conciliation (EC) via Acas. To facilitate the EC process, the employee’s time limit to bring an unfair dismissal claim (usually 3 months -1 day) is temporarily ‘paused’ during the EC period and any time spent engaged in EC automatically extends their time limit. The EAT has recently held that an employee’s time limit to issue a claim is not automatically extended by any days spent engaged in EC that occurred pre-termination.
R worked in a senior role for a bank. R commenced EC via Acas on 11 February 2023 and her employment was terminated 6 days later on 17 February 2023. The EC process ended on 28 February 2023. R issued an unfair dismissal claim on 30 May 2023 and the employer argued this claim had been brought too late. The employment tribunal agreed and dismissed R’s claim at a preliminary hearing.
R appealed to the EAT. The key issue before the EAT was whether: (1) R’s time limit should be automatically extended by the whole EC period (in which case her claim had been brought in time); or (2) The 6 days of EC which had occurred before R’s termination date should be excluded when calculating the automatic extension of time (in which case her claim had been brought too late).
The EAT dismissed R’s appeal and held that the relevant legislative provisions meant that the time limit clock was only ‘paused’ during any period of EC that would otherwise have counted towards the primary time limit; it did not entitle a claimant to extend their time limit by any period of EC which occurred before their effective date of termination (i.e. before their time limit had begun running). The EAT also dismissed R’s appeal against the tribunal’s refusal to extend time; the tribunal had been entitled to hold that it had been reasonably practicable for R to bring her claim in time.
In practical terms, where an employee has commenced EC pre-termination, a careful analysis of the relevant key dates will be required to check that any subsequent claims have been brought in time.
