If there is something that employment lawyers can be sure of in the uncertain world of employment law, it is that attempts to prescribe dispute resolution procedures only generate further dispute.
That was the fate that befell the statutory disciplinary and grievance procedures that were unceremoniously axed in 2009. The Acas early conciliation (EC) procedures are proving no less contentious, particularly in relation to the calculation (or, to be more precise, the recalculation) of time limits.
When the issue came before the EAT in Commissioners for HMRC v Garau UKEAT/0348/16, Kerr J wryly observed that this was the fifth time that a dispute concerning dispute resolution procedures had been before the court. Kerr J can take comfort from the fact that his decision has helped remove some of the uncertainty that surrounded the operation of the EC procedures and their impact on time limits.
Employment lawyers will be familiar with the basic mechanics of how time limits are recalculated under the EC regime. In summary, a time limit is recalculated with reference to points in time identified in the legislation as Day A and Day B. Day A is the day on which a prospective claimant complies with the EC requirement by contacting Acas. Day B is the day on which the EC certificate is issued. In most circumstances, in considering the deadline for the presentation of a claim, the period between Day A and Day B (the “EC period”) is added to the date on which the primary limitation period would otherwise have expired, unless the time limit expires between Day A and one month after Day B, in which case a claimant has one month from Day B to present a claim.
This base position is complicated enough, but becomes even more complicated when one throws in other variables. Two such variables arose on the facts of Garau:
- Mr Garau completed a first round of EC through Acas when still under notice. Since his employment had not yet terminated, the primary limitation period had not yet begun. Therefore, the EC period fell before the commencement of the primary limitation period in its entirety.
- Mr Garau approached Acas a second time to begin EC, essentially in relation to the same dispute, one day before the primary limitation period was due to expire (excluding any recalculation under the EC regime).
These facts gave rise to two questions:
- Can a second EC certificate in relation to the same “matter” have any impact on the recalculation of the time limit?
- If all or part of the EC period falls before the commencement of the primary limitation period, to what extent (if at all) does a claimant benefit from an extension of time to present a claim?
Only the first of these questions was directly in issue in the appeal. If the second EC certificate had no effect on the recalculation of the time limit, Mr Garau’s claims were out of time, irrespective of whether the first EC period was added to the date of expiry of the primary limitation period, in whole or in part. Therefore, the EAT did not hear full argument on the question of whether the EC period had to fall within the primary limitation period in order for there to be an extension. Nonetheless, Kerr J addressed the issue anyway.
As regards the question of the second EC certificate, Kerr J concluded that the EC regime required a prospective claimant to comply with the EC requirement only once, following which the prohibition on bringing proceedings, contained in section 18A of the Employment Tribunals Act 1996, was lifted. Day A corresponded only with compliance with the mandatory requirement. Therefore, a second EC certificate in relation to the same matter had no bearing on the recalculation of time limits and should not be taken into account.
Kerr J found that the limitation expired on 29 March 2016. It followed that Mr Garau did not benefit from an extension of time at all since the EC period came to an end before the primary limitation period began. One cannot stop a clock that is not running.
It is clear from Garau that employment lawyers cannot hope to “buy time” to present a claim by embarking on EC where the claimant has already complied with the EC requirement in relation to the same matter. Any second EC certificate will have no effect on extending time and the claimant runs the risk of being out of time. In the light of the decision in Garau, tribunals are likely to have less sympathy for claimants who find themselves in that predicament and so will be less likely to exercise their discretion to extend time.
Can a claimant still argue that they are entitled to an extension of the time limit equivalent to the full EC period even where the EC period falls before the primary limitation period, either in whole or in part? A claimant might wish to argue that the observations of Kerr J were obiter and not binding. While the remarks of Kerr J were obiter, I do not believe a tribunal is likely to find this argument persuasive. This is for two reasons. First, whether obiter or not, the view of Kerr J was expressed in clear terms and was well reasoned. A tribunal is unlikely to reach an alternative conclusion. Second, this question had already been answered, albeit indirectly, in the earlier EAT decision of Tanveer v East London Bus and Coach Co Ltd UKEAT/0022/16 (an authority relied on in Garau). There, HHJ Eady QC concluded that:
“The purpose of section 207B [of the Employment Rights Act 1996] is undoubtedly to ensure that, with regard to ET time limits, a claimant is not disadvantaged by the amount of time taken during the relevant limitation period for EC compliance. Thus the amount of time spent on EC will not count in calculating the date of expiry of the time limit; the clock simply stops during the EC period.”
If the purpose of the recalculation of time limits to take account of EC is to ensure that “a claimant is not disadvantaged by the amount of time taken during the relevant limitation period for EC compliance …” there is no reason in principle for a claimant to obtain an extension to the time limit in relation to any part of the EC period falling before the commencement of the primary limitation period.
(Daniel Northall represented the successful appellant, HMRC)