The general requirements for EC are well known - a potential Tribunal claimant must contact ACAS within 3 months of the termination of their employment, conciliation will then "stop the clock" on the time limits for lodging a tribunal claim for up to a further month.
The first case, Fergusson v Combat Stress is a decision of the Glasgow Employment Tribunal from March this year. Ms Fergusson began EC on 14 July 2016, her employment terminated on 11 August and an EC certificate was issued on 14 August. This meant that only 3 days were spent in conciliation following the termination of employment. The application to the Tribunal was presented on 18 November 2016. If all 30 days that were spent in EC were added to the primary three month limit for lodging a claim then the claim would be in time. However, if only the 3 days that followed the date of termination were added to the primary limit then the claim should have been lodged by 14 November and was late.
At the time the EAT had not made any decision on this point. However, there were a couple of English Tribunal judgements that had concluded that, in such circumstances, all 30 days spent in EC should be added. However, the Glasgow Employment Judge took the view that only the three days after the termination date should be included. Her logic was that the regulations which brought EC into effect allowed for the EC process to "stop the clock" that starts running from the date of termination for an unfair dismissal claim. Prior to that date the clock was not running and there was therefore nothing to stop. Similarly, the purpose of stopping the clock was to avoid claimants running out of time in consequence of undertaking EC. In Ms Fergusson's case she only lost 3 days to the EC process and she was compensated for that by adding those 3 days onto to the time limit for lodging the claim. That meant that she had a full 3 months following the end of EC to get her claim lodged.
The EAT judgement in the second case, Commissioners for HM Revenue and Customs v Serra Garau was issued about 6 weeks after the Fergusson case. It agreed with Fergusson that EC which takes place prior to the date of termination does not extend the time limit for lodging a Tribunal application. However, the EAT also considered the effect of a second period of conciliation being entered into. The claimant began the EC process on 13 October 2015 while his 3 month notice period was running. An EC certificate was issued on 4 November with the Claimant's notice period expiring on 30 December. In the normal course the Claimant then had until 29 March to lodge a claim at the Tribunal. However, on 28 March he contacted ACAS again and a second period of EC began with a second certificate being issued on 25 April. A claim was lodged with the Tribunal on 25 May.
At a preliminary hearing an Employment Judge came to the view that the Claimant was entitled to rely upon the second EC certificate, the time limit for lodging the claim was modified and that therefore the claims were in time. HMRC appealed and the EAT allowed the appeal. The significant findings of the EAT were:-
- Regulations created only one mandatory period of EC;
- The purpose of the regulations were to prevent the bringing of a claim without first carrying out EC;
- Any further period of EC is voluntary and not necessary prior to the bringing of a claim;
- It is only the first mandatory period of EC that modifies the time limits for lodging claims.
In this case because EC had taken place prior to termination of employment there was no modification to the time limits for lodging a claim and the tribunal application should have been presented by 29 March 2016.