The law states that, once the Early Conciliation process has come to an end, claimants have one month in which to lodge their tribunal claim. In Pearce v Merrill Lynch, the Employment Appeal Tribunal (EAT) held that if the claimant has not adhered to the three-month time limit in which to submit their claim, they cannot then benefit from the one-month extension.
Mr Pearce claimed that after he had made protected disclosures (blown the whistle) in July and September 2015, he suffered a number of detriments (was treated badly), including a false accusation made against him at a mid-year review meeting on 14 July 2017. This proved to be the “final straw” and he went off sick with effect from 17 July. He then complained of a further, last, detriment on 11 August meaning that the time limit for lodging a claim was 10 November.
However, due to ongoing ill health, he was unable to consult solicitors until 25 October. He returned to his solicitors on 28 November who arranged for a meeting with a barrister on 5 December. It then took his solicitors a further 16 days to initiate the ACAS Early Conciliation (EC) provisions. The EC certificate was issued on 8 January and Mr Pearce lodged his protected disclosure detriment claim on 7 February 2018.
The tribunal concluded that his claim had been lodged out of time. Although it acknowledged it was not reasonably practicable for him to have presented his claim within three months of the last detriment because of his ill health, he had not explained why he had delayed until 7 February 2018.
The tribunal also held that his legal advisors had mis-read section 207B(4) of the Employment Rights Act 1996 (ERA) which allows for an extension of time for the purposes of EC, but only if the claimant had adhered to the initial time limit. As the three-month limit for starting the conciliation process had already expired by the time Mr Pearce initiated the EC process, subsection (4) did not apply.
Mr Pearce appealed, arguing that the tribunal had failed to take account of the evidence showing that he was not able to provide his solicitors with coherent instructions.
The EAT noted that there were two limbs to the formula for extending time - first, the employee must show that it was not reasonably practicable for them to have presented their claim in time; second, the tribunal must be satisfied that the time within which they ultimately presented their claim was reasonable. These were both questions of fact for the tribunal to determine.
In this case, the EAT held that the tribunal was entitled to expect Mr Pearce to provide an explanation as to why he had not been able to lodge his claim before 7 February 2018. Although he provided evidence for the period up to the date on which ACAS was notified under the EC procedure, he had not explained why he then waited a further month to lodge his claim.
The tribunal was also entitled to infer that this further delay was because his legal advisors had wrongly assumed he could benefit from the one-month extension of time afforded under the EC process. However, if the primary time limit has already expired before a claimant has contacted ACAS, then the extension does not apply.
The EAT therefore concluded that the tribunal had been entitled to find that Mr Pearce’s claim had not been lodged within a reasonable period after it had become reasonably practicable for him to commence proceedings.