Assessing confusing changes to time limits for employment tribunal claims

The Enterprise and Regulatory Reform Bill includes proposals that before a claimant can present a claim before an employment tribunal (ET) they must undertake pre-claim conciliation using the services of the Advisory, Conciliation and Arbitration Service (ACAS).

In 2004 the last government introduced the much maligned statutory dispute resolution procedures. Their aim was similar to those in the bill, namely to try and get employers and employees to resolve their disputes without recourse to an ET. Those procedures proved to be complex, impracticable, and gave rise to unnecessary satellite litigation on a number of issues such as questions of what was the correct time limit for the presentation of claims. The statutory dispute resolution procedures were repealed in 2009.

Regrettably, I fear that this government has not learnt from its predecessor's mistakes. As the bill is currently drafted, I anticipate that we will again see a lot of unnecessary satellite litigation on this issue.

New time limits

Changes to the calculation of time limits for claims are set out in schedule 2 of the bill. This seeks to extend the time for presentation of a complaint. It does so by making an allowance for the conciliation period between Day A (the date when a claimant complied with the proposed new section 18A of the Employment Tribunals Act 1996 requirement to seek to conciliate complainants before the presentation of a claim to an ET) and Day B (the date when the claimant receives, or is deemed to have received, the conciliation officers' certificate). This period is not counted.

Further, the bill states that if the relevant provision would (if not extended by the relevant sub-section) expire during the period beginning with Day A and ending one month after Day B, the time limit expires at the end of that period, in this case one month after the end of Day B.

As currently drafted, these rules are complex and will not be easily understood by employees, employers, their representatives or the ETs. To illustrate ?this point I have set out two worked examples of how we understand the new rules on time limits would work in an unfair dismissal case (see box below).

As can be seen, the time limit for present-ation of a claim, where the effective date of termination is the same, will vary from case to case depending on how quickly the conciliation officer's certificate is received by a claimant. I anticipate that this is likely to give rise to much confusion and unnecessary ancillary disputes.

With discrimination claims, the calculation is likely to be further complicated because the ET may also have to consider whether there has been a 'continuing act'.

When the statutory disciplinary procedure was introduced, similar changes were made to the rules on the calculation of time limits. This resulted in a period of uncertainty for parties about the date when the time limit for presenting a claim for unfair dismissal expired as there were conflicting decisions from the Employment Appeal Tribunal on this issue (see Singh t/a Rainbow International v Taylor UKEAT/0183/06 and Joshi v Manchester City Council UKEAT/0235/07).

Possible solution

The rules concerning time limits need to be simple and easily understood by all who have to use them i.e. claimants, respondents, their advisers and ETs. We do not yet know what the 'prescribed period(s)' will be for ACAS to try and settle claims that are sent to them. However, it is clear that the government anticipates that additional time will be required in the process for ACAS and the parties to try and resolve claims using the mandatory conciliation process. Therefore, I would suggest that consideration is given to simply increasing the periods for presentation of ET claims.

The existing rules dealing with the circumstances where ETs can extend time would remain. This approach has the benefit of simplicity.