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Stop the clock

Helen Crossland considers the time limits for presenting a claim against multiple respondents in light of early conciliation regulations How is the limitation date affected when a claimant intends to bring a claim against multiple potential respondents, with whom early conciliation (EC) starts and ends at different times? The recent case of Beadle v Addaction [2014] is of major importance to practitioners as it tested a key area, which the new rules governing EC, the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014, fail to address. Differing dates Beadle v Addaction concerned a transfer of undertakings (protections of employment) (TUPE) transfer in April 2014, following which the claimant, Mr Beadle, wished to pursue complaints against both his outgoing and incoming employer. Owing to the introduction of EC in the same month, Beadle understood he would need to go through this process before he could lodge a claim. Beadle initially commenced EC with Addaction (the transferee) on 14 May 2014. EC with Addaction concluded on 13 June 2014 and by virtue of the 'stop the clock' provision within the EC process, the normal limitation date to bring a claim against Addaction was extended to 12 July 2014. Beadle commenced EC against the potential second respondent, the transferor, on 19 June 2014. On 14 July 2014, two days after the limitation date to claim against Addaction, and while EC with the potential second respondent was still ongoing, Beadle attempted to lodge an employment tribunal claim form (ET1) online against both Addaction and the potential second respondent. However, the claim was rejected due to there being no EC reference number for the latter. Some weeks later, after EC had also concluded with the potential second respondent, Beadle lodged an ET1 against Addaction only, which was accepted by the tribunal. Addaction sought a strike out of the claim on the basis that it was out of time. Time limits The tribunal found for Addaction, concluding that EC with the proposed second respondent, for which a later limitation date applied, did not extend the limitation period to claim against Addaction, with which EC had ended. The tribunal held there was no reason why it had not been possible for Beadle to file his claim against Addaction in time, and his wrongly held belief that his ET1 would not be accepted until EC had concluded with both respondents did not excuse his failure to do so. The tribunal concluded Beadle ought to have lodged an ET1 by 12 July 2014 against Addaction only, later applying as necessary to join the claim with any separate proceedings brought against the potential second respondent. The case provides clear direction for those facing the above conundrum and clarifies that, where there are anticipated multiple respondents, the claim must be filed at the earliest of the limitation dates for any of the proposed parties or, alternatively, a claim should be lodged against the respondent(s) for which there is an EC reference number, with a subsequent claim against any parties playing catch up. Permission can then be sought from the tribunal to join the claims together. Where you consider a claim out of time, the same principles apply as they would have pre-EC – a response will need to be lodged to preserve your position as a party to the proceedings and, within this, a preliminary hearing can be sought to challenge whether the claim should have been accepted. No excuses While EC brings added complications into the mix, not least because of the shortcomings in the regulations and its convoluted 'stop the clock' system, the absence of a solid excuse for why it was not reasonably practicable for a claimant to lodge a claim in time will still render a tribunal as unlikely as it was before to accept an otherwise out of time claim. As was demonstrated in Beadle v Addaction, an alleged misconception of the new regulations is unlikely to assist a claimant in this regard. If early conciliation stays as a concept – and this remains to be seen, given its relatively low success rate to date – it is hoped that any gaps in the regulations can be resolved satisfactorily and that practitioners will not need to wait for test cases to answer technicalities the legislation omits to address. SJ Helen Crossland is a partner at Hamlins  

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