In my last article I looked at some of the procedural hurdles which need to be dealt with when considering making a claim to the Employment Tribunal; in this article I will consider the Early Conciliation process which all claimants need to undertake before they can make a claim.
The purpose of Early Conciliation is to involve ACAS in your employment dispute and to give the employer and employee an opportunity to settle their differences without going to the Tribunal. To encourage and help that process it was decided that time stops for the various time limits for claims to the Tribunal when the parties are in conciliation; again, that’s simple, isn’t it? Everyone can imagine what a stopped clock looks like, but I’m afraid it’s not that straightforward.
The Conciliation Period
The day after you contact ACAS to start the process (which we will call “Day A”) the clock stops for your claim, ACAS can then attempt to conciliate, usually for up to a month but they can extend it to a month plus 14 days (i.e. to a total of anything from 42 to 45 days depending which month it is) if progress is being made. Where the Conciliation period ends without agreement ACAS will issue a Certificate (which you need to issue your claim) receipt of which sets the end of the Conciliation Period (“Day B”).
If the Certificate is sent by email you will be deemed to have got it the same day, but if it is sent by post you will be said to have got it on the second working day after it was sent (Sundays and bank Holidays aren’t “working days”, Saturdays are), so if it’s posted on a Friday, you will be deemed to have got it on the Monday (or Tuesday, if the Monday was a Bank Holiday, or possibly Wednesday if it happens to be 27th December as with this year).
Making the Claim to the Tribunal
If you’ve engaged in Early Conciliation soon after you were dismissed, the time for making your claim just stops and you can add the number of days between A and B to the original deadline for making your claim, for example
- you’re dismissed on the 1st August
- you contact ACAS on the 5th September (so “Day A” is the 6th September) and
- after a fortnight ACAS issue the Certificate by email on the 20th September (“Day B”)
so the fourteen days between Day A and Day B are added to your original deadline for filing your claim.
Your original deadline would have been 31st October (i.e. three months less one day), but has now been moved to the 14th November.
If however, as is often the case, you contact ACAS nearer the original deadline for issuing your claim, so that the original deadline falls within the period between Day A and one month after Day B, then your new deadline is a month after Day B; e.g.
- you were dismissed on 1st August (so your original deadline was 31st October, as above)
- you contact ACAS on the 12th October (so “Day A” is the 13th October) and
- the Certificate is emailed on the 27th October (“Day B”),
your new deadline for filing your claim is the 26th November (a month after Day B).
Of course, if the Certificate was posted, rather than emailed, on Friday 27th then “Day B” becomes Monday 30th and your deadline would be 29th November!
Please note that if you do not contact ACAS before the original deadline then you will be too late to issue a claim (unless there are grounds for the Tribunal to say that it was “not reasonably practicable” to issue the claim in time)
As I indicated in my earlier Article there are a number of procedural matters which need to be addressed before you can make a claim in the Employment Tribunal and it is important that you get proper professional advice in order to ensure you can make a valid claim and to confirm that you have a reasonable prospect of winning. Advice is available from the CAB, solicitors and, under the Direct Access Scheme, from specialist employment barristers.