Any employee seeking to pursue a claim in the employment tribunals must first have engaged in the ACAS Early Conciliation (”Early Conciliation”).
In the majority of cases, an employee must bring their claim within three months less one day of the act complained of. The Early Conciliation process, though, “stops the clock” so that the time spent in Early Conciliation is not counted against the employee’s three month less one day time limit.
However, there had previously been some uncertainty as to what happens to the time limit when Early Conciliation is started before there is a “live claim”. For example, where an employee starts Early Conciliation whilst still an employee but later resigns, the time limit for their constructive dismissal claim starts from their last day of employment. But do they still get the time spent in Early Conciliation before their resignation added on to their time limit to bring a claim?
In Chandler v Thanet District Council ET/2301782 and Myers and Wather v Nottingham City County Council ET/260113/6/15 and ET/260113/7/15, the ET held that “stopping the clock” started the day after Early Conciliation was started (“Day A”) and finished on the day Early Conciliation ended (“Day B”), regardless of whether some of these days fell before the time limit would actually run, and so the full amount of time spent in Early Conciliation was to be added on to the time limit.
Recent case law in Fergusson v Combat Stress (which is currently unreported), held that any days spent in Early Conciliation that fell before there was a “live” claim, would not be added onto the limitation period. The Tribunal held that it is not possible to stop the clock, before the clock has even started and so only time spent in Early Conciliation after the “live” claim date could be added on to the time limit for bringing the claim.
Employment tribunals are extremely strict on time limits and it is therefore very important for potential claimants to understand the “stop the clock” provisions to ensure that they are not “timed out” of bringing a claim. Similarly, it is useful for employers to be aware of these provisions, both in defending any claims brought by current or former employees and in considering whether or not to engage in negotiations with employees pre- or post- issue of a claim.
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