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05 September 2016

Clarification on early conciliation and time limits

Under Section 207(B) of the Employment Rights Act 1996 (ERA), when an employee who is intending to lodge an Employment Tribunal (ET) claim complies with the requirement to first notify the Advisory, Conciliation and Arbitration Service (Acas) of their intention, with the option to attempt to settle the dispute using its Early Conciliation (EC) service, the clock stops for the purposes of working out the time limit for bringing a claim. It stops for the period commencing on the day after Acas is notified and ending on the date on which the applicant receives the EC certificate. Where the time limit would otherwise expire during the period beginning with the date on which application to Acas is made and ending one month after receipt of the EC certificate, the time limit expires at the end of that period.

In Tanveer v East London Bus and Coach Company Limited, Mr Tanveer appealed against the decision of the ET that his claim of unfair dismissal was lodged one day after expiry of the one-month period after he had received his EC certificate. The Employment Appeal Tribunal (EAT) found, however, that it was bound by the decision of the House of Lords in Dodds v Walker, a landlord and tenant case, that a reference to a 'month' in a statute refers to a calendar month and the one-month extension period should be calculated using the 'corresponding date rule'.

According to this rule, when the relevant period is a month or a specified number of months after a specific event, the relevant time period ends on the corresponding date in the appropriate subsequent month – i.e. the day of that month that bears the same number as the day of the earlier month on which the specific event occurred. The inevitable consequence of the corresponding date rule is that a one-month period commencing in a 30-day month is one day shorter than if the specific event took place in a 31-day month (and three days shorter if the earlier date occurs in February in a non-leap year). Also, in cases where the specific event occurs on the last day of a month and ends in a month of shorter duration, the period ends on the last day of the month. The rule is well established and, in the EAT's view, 'has the attraction of simplicity and clarity' where reference is made to a calendar month.

In this case, Mr Tanveer was dismissed by East London Bus and Coach Company Limited on 20 March 2015 and the EC notification was made to Acas on 18 June 2015. The EC certificate was received on 30 June 2015 and so, in accordance with the corresponding date rule, the last day for presentation of his ET claim was 30 July 2015. As the claim was presented on 31 July 2015, the EAT upheld the ET's decision that it was out of time.

If you need advice on this issue, please contact Paul Lawton in the employment team. Call 01753 279029 or email your enquiry to employmentlaw@bpcollins.co.uk.

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