Time extension and ACAS EC
In a case involving a borough council the Employment Appeal Tribunal has endorsed the sequential approach to time extension for ACAS EC (early conciliation), report Craig Ludlow and Sarah Bowen.
The claimant in Luton Borough Council v Haque [2018] UKEAT 0180_17_1204 (12 April 2018) was summarily dismissed on 20 June 2016 (‘the EDT’). ACAS was contacted on 22 July 2016 and the EC [early conciliation] certificate issued on 22 August 2016 (31 days). The ET1 was presented on 18 October 2016 for claims of unfair and wrongful dismissal, direct and indirect race and region or belief discrimination. The primary limitation period for unfair dismissal was 19 September 2016. In the ET3 the Respondent contended that the claims were out of time. At a PHR the ET concluded that the claims were in time and the matter should proceed to a full hearing. The Respondent appealed.
The relevant legal provision
Section 207B of the ERA provides:
"207B. Extension of time limits to facilitate conciliation before institution of proceedings
(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a "relevant provision").
But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A.
(2) In this section -
(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and
(b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.
(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.
(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section."
Applying section 207B(3) to the facts of Haque, i.e. adding the 31 days of ACAS EC to the primary limitation period of 19 September 2016 would mean that the ET1 needed to be submitted by 20 October 2016. This would mean that the claim was presented in time.
However, applying section 207B(4) meant that the claim was not presented in time because, the primary limitation date of 19 September 2016 fell in the period of 1 month after ‘Day B’ (22 September 2016) accordingly application of the ‘precise’ wording of the section would mean that the claim needed to be present by 22 September 2016 (thus it would be 26 days out of time).
The issue
What is the meaning of the time limit to which 207B(4) refers? Is it the unmodified time limit for which s111(2)(a) ERA provides, or the modified time limit of section 207B(3)? Does section 207B(4) take precedence? Or should they be applied sequentially?
The EAT decision (at a rule 3(10) of the EAT Rules 1993 hearing – following comments at the sift stage that the papers disclosed no reasonable basis to proceed)
Section 207B(3) applies in every case; sections 207B(3) and (4) are to be applied sequentially. The EAT considered that subsection (4) furthers that intention by ensuring that a prospective claimant always has at least one month from the end of the EC period in which to bring a claim. Otherwise, if a prospective claimant contacted Acas towards the end of the unmodified time limit, he or she would have little time in which to commence proceedings should conciliation fail. The EAT therefore concluded that H's claims had been presented in time, but nonetheless reluctantly directed that the matter should proceed to a full appeal hearing (with the caveat that the Respondent may face a costs application if the claimant incurred costs at that stage).
Craig Ludlow and Sarah Bowen are barristers at 3PB. Craig can be contacted on 020 7583 8055 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it , while Sarah can be reached on 0121 289 4333 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
