Early conciliation continues to be clarified

As of 6 May 2014, it became compulsory for employees to follow the ACAS early conciliation procedure before being able to pursue a tribunal claim.

In those first two years there have been a number of skirmishes between employers and employees as both sides get to grips with the rules of the scheme.

Three recent judgments have helped to clarify some of the outstanding issues.

Firstly Tanveer v East London Bus and Coach Company Ltd determined how the last date on which proceedings can be issued (following the issue of the Early Conciliation certificate) should be calculated.

If, under the ordinary rules, an employee has less than a month to issue their claim after the issue of the Early Conciliation certificate, the deadline is extended to a date ‘one month after’ the issue of the certificate.

Most of those involved in employment law will be familiar with the ‘less one day’ rule for calculating limitation dates. Under that regime, for example (and ignoring the early conciliation process), an employee who was dismissed on 15 June would have three months, less one day, to submit his unfair dismissal claim (i.e. it would need to be submitted by 14 September).

However, the wording of the Early Conciliation rules is slightly different and seemed to reflect the ‘corresponding date rule’ used in other areas of law.

The Employment Appeal Tribunal confirmed in Tanveer that indeed it is the corresponding date rule that should apply. So if an early certificate were issued on 15 June the employee would have to issue to claim on or before 15 July.

TIC International Ltd v Ali was concerned with the situation where an employee incorrectly names his employer during the early conciliation process.

Can the error be rectified by adding the correct employer as a respondent after claims have been issued, even though this means the early conciliation procedure has not been followed?

The Employment Appeal Tribunal said ‘yes’.

When starting the early conciliation procedure, and in his ET1, the claimant named his employer as ‘Islamic Relief Worldwide’, however that organisation was not his employer. In fact his employer was a company called ‘TIC International’ (which was a wholly owned subsidiary of Islamic Relief Worldwide).

Following its earlier decision in Drake International Systems Ltd & Others v Blue Arrow Ltd, the EAT held that the tribunal retained its discretion to add respondents to existing proceedings and that the early conciliation rules did not exclude that discretion.

Although the exercise of that discretion is not automatic, the cases seem to suggest that the tribunals are taking a permissive approach, so that minor or trivial failures at the early conciliation stage will not necessarily mean the end of a potential claim.

A similarly permissive approach seems to have been adopted in Adams v British Telecommunications Plc. In that case the Claimant had missed the last two digits of the early conciliation certificate number when she filled in her ET1 and by the time the tribunal had notified her of the mistake her limitation period had expired.

Although the EAT confirmed (following Sterling v United Learning Trust) that an ET1 submitted with an incorrect early conciliation number must be rejected; it held that it had not been reasonably practicable for the claimant to have submitted her claim in time and, accordingly, it extended the limitation period.

Dominic Bonham