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The recent Employment Tribunal (ET) decision in Booth v Pasta King seeks to clarify the extension of time afforded for claimants going through ACAS Early Conciliation.
Since 6 May 2014, any claimant seeking to bring a claim in the ET must go through ACAS Early Conciliation. Early Conciliation was introduced to encourage prospective parties to a claim to reach agreement without the need for a claim to be issued. The process, which requires both parties to be willing to conciliate, can last for an initial period of up to four weeks, and up to an additional two weeks if the parties consent and settlement is a realistic prospect.
A knock-on effect of the introduction of Early Conciliation is on time limits for bringing claims in the ET. As readers will be aware, the vast majority of employment claims brought in the ET are subject to a time limit of three months. As Early Conciliation can take up to 42 days, legislation was introduced to extend the time limit to bring a claim so that claimants were not disadvantaged by going through the process.
The legislation dealing with extensions of time, not famed for simplicity, introduces the concept of 'Day A' and 'Day B' (Day A being the date on which a prospective claimant contacts ACAS to commence Early Conciliation, and Day B being the date on which ACAS issue a certificate to confirm that the Early Conciliation process has ended).
The legislation also introduced two different extensions of time - an extension of one month from Day B, and an extension equivalent to the period between Day A and Day B - depending on when (by reference to the original time limit for the claim) Early Conciliation took place.
The question in Booth v Pasta King was whether a prospective claimant could only benefit from one extension or the other, or whether they would benefit from whichever was the longer.
Mr Booth was dismissed on 2 April 2014. The original deadline for him to bring an unfair dismissal claim was therefore 1 July 2014. On 21 May 2014, Mr Booth contacted ACAS to commence Early Conciliation (Day A). A settlement was not reached and he received his Early Conciliation Certificate on 21 June 2014 (Day B). On 24 July, Mr Booth submitted a claim for Unfair Dismissal. Pasta King stated that the claim was out of time and should be struck out. They argued that the extended time had expired which was one month from receipt of the certificate, making the deadline 21 July 2014.
The ET held that the claim had been brought in time. The ET concluded that the effect of the legislation was cumulative and so Mr Booth benefited from the longer of the two extensions of time. In this case, it meant that the time limit was extended from the original limitation date (1 July 2014) by the period of conciliation (31 days) meaning that the claim was in time.
This case is illustrative of the complex new rules regarding time limits for claims in the ET. Whilst previously employers could be fairly confident about when the time limit for a claim would expire, the new rules create greater uncertainty - particularly as there is no guarantee that an employer will know when a prospective claimant contacted ACAS.
It is important to note that the decision in Booth v Pasta King is an ET decision only and it is yet to be seen whether other tribunals will follow suit. With that in mind it is sensible for employers in receipt of a claim to check the time limits carefully on each occasion and seek advice when necessary.