A recent Tribunal decision has held that time spent in ACAS Early Conciliation (“EC”) before a limitation period starts cannot extend the time limit for bringing a claim.
In Fergusson v Combat Stress the Claimant started ACAS EC 28 days before her actual dismissal. In previous cases, Tribunals had decided that when EC started before the employee was dismissed then the Claimant could still have the full month to add on to their deadline to bring their claim.
However, in Fergusson, the Tribunal decided the three-month time limit only commenced at the date of dismissal so days spent in EC before this date did not count, meaning the claim had been presented four days late. The Tribunal held that the EC process cannot “stop a clock” that has not been started.
It is worth noting that this is a decision of the Tribunal and not an appeals tribunal or court so it is not binding.
Previous decisions were made with the steer of non-statutory government guidance which at the time stated that time in EC could be added for all claims but this has been removed from the updated guidance. Due to the confusion over this rule, the Tribunal allowed Ms Fergusson’s claim to proceed but this lenience is not likely to continue so all parties are advised to work to the earliest date.
For any further advice on this complex area of law please contact our employment team.