Time Limits: Acas extension only available if early conciliation started before time limit expired

The Employment Appeal Tribunal has ruled that where a time limit for bringing a claim has already expired, starting early conciliation does not extend the time limit (Pearce v Merrill Lynch).

Early conciliation extends time limits

Claimants normally need to contact Acas for early conciliation before issuing an employment tribunal claim. This extends the three month time limit for bringing the claim, as you ignore the period of early conciliation when calculating the time limit. If the extended time limit would expire within a month after early conciliation ends, it is extended again so the claimant has at least one month after the end of early conciliation in which to bring their claim. 

Employment tribunal refuses extension of time

Mr Pearce brought a claim alleging detrimental treatment on grounds of whistleblowing. He should have brought his claim by 10 November 2017, but was too unwell to do so.  He took legal advice in early December and started early conciliation on 21 December. He issued his claim on 7 February 2018, which was one month after early conciliation ended. 

For the case to proceed, he needed to show that it was not reasonably practicable for him to bring his claim in time and that he had brought the claim within a reasonable timeframe thereafter.

The employment tribunal accepted it had not been reasonably practicable for Mr Pearce to file his claim within the three month time limit, due to ill-health. However, it considered he had not presented the claim within a reasonable period thereafter. The lawyers had taken 16 days to start early conciliation and he had provided no explanation for this delay. In addition, there had been a further delay of one month after early conciliation concluded. The employment tribunal considered this must have been due the lawyers’ mistaken assumption that they had one month after the end of early conciliation to file the claim. This was not the case where the time limit had already expired before starting early conciliation.

The employment tribunal therefore dismissed the claim. Mr Pearce appealed. 

Employment Appeal Tribunal rejects appeal

The Employment Appeal Tribunal upheld the employment tribunal’s decision. The tribunal had been correct to seek an explanation for the 16 day delay in notifying Acas and for the subsequent delay in filing the claim. Mr Pearce had not provided one. His evidence about the reasons for delay focussed on the period up to the time when he notified Acas of his claim. After that he was working on the mistaken assumption that he had one month after the end of early conciliation in which to bring his claim and gave no other explanation for the delay.  

Comment

This ruling gives further clarity on extending time limits for early conciliation. If the time limit has already expired, early conciliation cannot extend it.   

Claimants need to be aware of the strict deadlines for issuing a claim. If seeking an extension of time, they will need to give an explanation for the whole period of the delay. As was the case here, reliance on erroneous or mistaken legal advice is unlikely to show the delay was reasonable.