You have an employee. Well, you have several. Relations with most of them are great. But with this one – it’s just not working out. Let’s skip over the reasons; it could be anything – his fault or yours, or just a personality clash.
You’re wondering what you can do: try to salvage the relationship or serve notice as he has less than the two years required for an unfair dismissal claim.
And then you receive a phone call from Acas (the Advisory Conciliation and Arbitration Service) – according to Acas, the employee thinks he has a potential claim and is suggesting you offer him money and a termination agreement. You see no reason why you’d pay anything other than his notice period.
Matters rumble on. You correspond a little with Acas, but reach no agreement and a month later you receive an early conciliation certificate from Acas – that’s the procedure. A short time after you give him notice of termination of employment; so his employment ends after his notice period, which let’s say is one week. Four months after the termination of his employment you receive a letter from the employment tribunal. It turns out he is making a claim against you! He claims automatically unfair dismissal (for example whistleblowing) and discrimination: these claims don’t require two years’ employment.
You know that traditionally, the time limit for these claims is three months from the relevant date, which here would be termination of employment. You also know that, due to this new mandatory Acas early conciliation procedure, time limits are normally extended by the length of the early conciliation. If a month is added on to the time limit, it would be four months so his claim would be in time.
So can you ignore this claim or not?
First, you should never ignore a claim. Even if you’re certain it’s out of time, you may have calculated wrongly or the tribunal may find an excuse to extend time. Without you pointing it out, it’s even possible that the tribunal won’t notice that the claim’s out of time – if you realise a claim is out of time, let the tribunal know in your response.
But is this claim in time? Unfortunately, different employment tribunals have given opposite decisions on this point. The good news for employers is that according to the two most recent employment tribunal decisions on this issue the time limit will only be three months. Accordingly, the claim in my example is out of time. The conciliation procedure “stops the clock” from running – if the clock hasn’t started to run, it can’t stop. Only that part of the conciliation period during which a claim could have been issued extends time.
Further, if the former employee contacts Acas a second time, this time after termination of employment, according to the latest decision (HMRC v Garau), the second conciliation period is purely voluntary and will not extend time at all. These decisions are well reasoned and rely upon updated Government guidance, so we expect these decisions to be followed in the future.
If you require further advice on these issues, you may wish to join our community; on elXtr we have guides and documents to help you navigate employment issues.
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I reach these conclusions without regret. It is a well known feature of litigation in many jurisdictions that settlement has to be considered alongside time limits and the running of time, and the obligation to litigate in a manner that is fair to the opposing party and to other users of the court or tribunal. Under procedural rules, defendants and respondents are entitled to benefit from the expiry of limitation periods. The entitlement to that benefit is only diluted to a limited extent in return for the obligation on a claimant, in this particular jurisdiction, to comply with the mandatory early conciliation provisions.