Second EC certificate
Labour & European Law Review Weekly Issue 520 17 May 2017
The law provides that where a claimant contacts Acas and enters early conciliation (EC) during the limitation period, the period of EC stops the clock when calculating the time limit. In The Commissioners for HMRC v Garau, the Employment Appeal Tribunal (EAT) held that as the regulations only allow for one certificate, a second certificate could not extend the time period for bringing a claim.
Mr Garau was given notice of termination of his employment on 1 October 2015 with the last date of his employment being 30 December. On 12 October, he contacted Acas under the mandatory early conciliation procedure; and on 4 November, Acas issued an early conciliation certificate.
On 28 March 2016 the day before the normal three-month limitation period for submitting a claim for unfair dismissal would have expired, he contacted Acas for a second time. It issued a second certificate on 25 April and a month later on 25 May, Mr Garau lodged a claim for disability discrimination and unfair dismissal at the tribunal.
HMRC argued that as the legislation only requires a claimant to obtain one EC certificate, the period for submitting his claims expired on 29 March. As such, his claims were outside the time limit in section 207B of the Employment Rights Act (ERA).
Section 207B states that, when working out the time limit for presenting a claim, the period beginning with the day after the claim is submitted to Acas (Day A) and ending with the day when the complainant receives their certificate (Day B) is not to be counted.
Noting the “unusual circumstances” in which Mr Garau had been issued with two certificates by Acas (one before the limitation period had commenced; and a second during the limitation period after he had been dismissed), the employment judge held that the second certificate “stopped the clock” during the second EC period. His claim for disability discrimination and unfair dismissal was therefore in time. HMRC appealed.
The EAT allowed the appeal, holding that only one certificate was required in respect of any matter for which a tribunal claim may be brought under the regulations. The second certificate was therefore irrelevant and did not trigger the modified limitation regime in section 207B. Time was not therefore extended.
The EAT considered the second certificate was voluntary and while voluntary conciliation under the auspices of Acas is useful and to be encouraged, it does not, of itself, modify time limits. Voluntary conciliation may influence tribunals which have to decide whether to allow amendments, grant extensions of time, or make other case management decisions.
It also confirmed that the decision in the case of Tanveer v East London Bus and Coach Co Ltd did not mean that the amount of time spent on early conciliation would not count in calculating the date of expiry of the time limit. That was a misunderstanding. In particular, in Tanveer limitation had already started to run when the claimant contacted Acas to start EC.
That was not the case for Mr Garau as he had contacted Acas before the limitation period had started and so the limitation clock could not stop under the first certificate, because it had never started. As the second certificate did not fall within the statutory EC scheme and was a purely voluntary exercise it had no impact on the time limit.
The case follows a number of conflicting employment tribunal decisions and confirms that time spent in early conciliation before the date of dismissal does not stop the clock for the purposes of calculating the time limit.