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Extending time because of early conciliation

“Mr Anderson, you’re obviously out of time!” Not a line from “The Matrix”, but a treasured memory from a recent appearance in the East London employment tribunal. This is just one example of times when I have had to fight over the proper application of the extension of time provisions where there has been early conciliation (EC) (section 207B of the Employment Rights Act 1996).

It is always disconcerting to have a judge tell you that you are obviously wrong but, thankfully, (in that case at least) I wasn’t. The effects of section 207B are not always obvious. The problem for my opponent in that case, and for the judge, was that section 207B appears to extend time in two different ways. Subsection 207B(3) effectively discounts from the usual three-month time limit the time that the dispute was being dealt with by Acas. Time for bringing the claim will therefore expire after three months plus however long Acas took to issue the EC certificate.

Subsection 207B(4) is slightly different. If the deadline falls within the period that Acas is dealing with the claim (plus one month), the claimant gets an automatic extension of one month from the date at which the EC certificate was issued.

Parties and tribunals need to get on top of the relevant dates and work through section 207B in its entirety before coming to a conclusion. I have found that dealing swiftly with these sorts of points requires something in writing: wrangling with dates in one’s head can become confusing very quickly. Here is the (almost) sum total of a recent “skeleton” I provided in an unfair dismissal claim:

EDT 16 January 2014
Ordinary three-month time limit expiry 15 April 2014
Day A under 207B(2)(a) 11 April 2014
Day B under 207B(2)(b) 11 May 2014
“One month after Day B” under 207B(4) 11 June 2014
Date stamped on ET1 11 June 2014

The correspondence between 11 May 2014 and 11 June 2014 is to be noted; it reflects the “corresponding date rule” set out in Dodds v Walker [1981] 1 WLR 1027 (House of Lords) according to which, where a time limit is expressed to expire on a date a month “after” or “from” a given date, it expires on the corresponding date in the next month. That is the test for the 207B(4) time extension (though not for the usual ERA 1996 time limits, thus the ordinary time limit expiry on 15 April, rather than 16 April).

There is no EAT authority on the applicability of the corresponding date rule but I have run the point three times now and no judge has questioned it. Colleagues report lengthier arguments on it, but no judges to my knowledge have decided that it did not apply.

EC presents practical pitfalls for all parties:

  • Claimants are, to some extent, at the mercy of Acas in turning around their EC certificate. They may be entitled to a considerably longer extension if the “original” deadline falls within the period in which the claim is with Acas, than if Acas manages to produce the certificate a month before the original deadline.
  • My experience is that respondents are often not being kept abreast of the relevant dates; they do not see the EC certificate as a matter of course and that can lead to respondents running time points on the basis of guess work, all because they did not know when the certificate was issued.

Correspondence between the parties, or at least with Acas, is to be encouraged. Representatives need to be on their toes about relevant dates; the system is considerably more tricky than it used to be.

Littleton Chambers Grahame Anderson

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