ACAS Early Conciliation: What happens if an application is made on the day of limitation?
Following the introduction of the requirement for all potential Claimants to go through the ACAS Early Conciliation beforehand this article looks at the practical impact of the provisions extending the time limit for any claim.
Specifically what happens if an application for Early Conciliation is sent to ACAS on the day of limitation?
There is no case law to date on the application of these provisions so I have simply attempted to decipher the provisions as they are at present.
These provisions can be found in Schedule 2 of the Enterprise and Regulatory Reform Act 2013.
S.13 of the Act inserts the following into provisions as s.292A of the Trade Union and Labour Relations (Consolidation) Act 1992:
“292A: Extension of time limits to facilitate conciliation before institution of proceedings
(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a “relevant provision”).
(2) In this section—
(a) Day A is the day on which the complainant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought and
(b) Day B is the day on which the complainant concerned receives or if earlier is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.
(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.
(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B the time limit expires instead at the end of that period.
(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision the power is exercisable in relation to the time limit as extended by this section.”
How is the limitation period extended?
Day A in the above provisions is essentially the day when the application for Early Conciliation is made. Day B is when the conciliation comes to an end and the applicant receives or is deemed to receive their certificate.
Usually when working out the extended limitation date the period beginning with the day after Day A and ending with Day B is not counted so it gets added on to the end of the conciliation period.
As well as the three months that an applicant has to submit a claim they would also get the additional length of time during which the conciliation takes place added onto the end.
As we can see from s.292A(3) of the Act the clock only stops from the day after Day A and starts again on Day B.
In that case what is the problem?
Referring to the question at the start of this article what if the application is sent to ACAS on the day of limitation? Surely by the time the clock stops the limitation date will have passed and the claim would be out of time?
Luckily s.292A(4) of the Act accommodates this eventuality.
Sub-section (4) is to be considered completely separately to sub-section (3). If the limitation period would expire during the period beginning with Day A and ending one month after Day B the limitation period expires at end of that period (i.e. a month after Day B).
Note that this section refers to the normal limitation period expiring in the period beginning with Day A and NOT the “day after” Day A. Therefore if an application is made at 11:00pm on the day of limitation clearly the limitation period would expire at 11:59pm which is in between Day A when the application is made and one month after Day B.
In any event an applicant should always have a minimum of one month to submit their claim after Early Conciliation has ended.
I have only looked at one aspect of these new provisions and they will be subjected to further scrutiny by the Employment Tribunal for a number of different reasons including the question of whether or not a Claimant has submitted a claim in time.
However for now we will have to wait before a dispute involving these provisions comes before an Employment Tribunal and some clarity can be provided.