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When Perseverance Does Not Pay – Repeated Attempts To Settle Leave Would-Be Claimant Out Of Time

Since 6 May 2014 it has been a pre-condition of starting most Employment Tribunal claims that the employee first refers the matter to Acas for early conciliation. If that process fails for any reason then Acas will issue an early conciliation (EC) certificate to that effect which is essentially a green light to issuing proceedings if the individual wants to do so. In order not to deter the parties from genuine attempts at conciliation, the early conciliation period “stops the clock” on the normal timescale for lodging an ET claim, i.e. 3 months from the act complained of.

If an employee contacts Acas after notice of dismissal is given but before it takes effect (and therefore prior to the point where time limits begin) and then contacts Acas again some months later, can this second attempt at early conciliation stop the clock?

This is what happened in Commissioners for HM Revenue & Customs v Serra Garau last month. Mr Garau approached Acas once he had been given notice to see if a settlement could be reached.  It soon became clear that it couldn’t.  He consequently received an EC certificate prior to his dismissal taking effect.  Still without a deal, he then contacted Acas again just one day before his three month limitation period was due to expire, resulting in the issue of a second EC certificate (for this approach was equally unsuccessful) a month later.

Mr Garau then started unfair dismissal and discrimination claims.  This was after the 3 months from his termination date had expired but still within time if the second conciliation period had stopped the clock. The preliminary issue for the Tribunal was whether the claims had been presented in time, or, in other words, whether the second reference to Acas stopped the clock?

At first instance the Employment Tribunal found in Mr Garau’s favour. However on appeal the EAT found that:

  • the law requires only one mandatory conciliation period;

  • the reason for the stop the clock provision is to prevent any prejudice to the Claimant for attempting to conciliate; and

  • only one certificate is needed per claim, a second is unnecessary.

As such, the EAT found that the time limit ended 3 months from his dismissal date. Just because Mr Garau did not benefit from the clock stopping during the first period (in the sense that no agreement was reached), did not mean he was entitled to a second period.

This does make some sense – after all we could not get to a situation where a claimant could continue to extend his time to make a claim by making repeated references to Acas about the same things. Pragmatically also, the original attempt to settle had not succeeded so there was little reason to think the second would (though that is not the legal test – even if things had changed such that he had cause to reduce his own demands and/or to believe the employer’s attitude would be different, Mr Garau was still out of time).

The case was remitted back to a fresh Tribunal to consider whether Mr Garau was entitled to an extension of time under the reasonably practicable (unfair dismissal) or just and equitable (discrimination) provisions.

Lessons for Employers:

  • Be vigilant for a second Acas claim brought by a former employee – have you seen it before? Are the issues the same (see below)?

  • Carefully check the dates when receiving a claim. If it’s out of time it could be struck out. If you are unsure, speak to your legal advisor.

  • Note that this does not mean only one Acas referral per employee. Mr Garau was out of time to claim unfair dismissal and discrimination because they were both covered by his first referral.  However, if after that first EC certificate there had been some other allegedly discriminatory act or omission by HMRC, a separate clock would run in respect of that, with a separate requirement to seek early conciliation before making a claim in relation to it.   In those circumstances Mr Garau would still have been entitled to run that claim even though the others were out of time.

  • Remember that just because the EC certificate has been issued does not mean you cannot utilise Acas’ conciliation services. Acas can continue to be a point of contact if required.

authored this post.

© Copyright 2019 Squire Patton Boggs (US) LLP

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