The EC process in an Employment Tribunal claim
ACAS early conciliation (EC) is designed to avoid employment tribunal proceedings. The EC process operates to ‘stop the clock’ on the limitation period in employment tribunal claims to allow the parties to negotiate a settlement. Once the process is complete, ACAS send an EC certificate confirming the dates of conciliation, which starts the clock ticking again. The rules seem simple but in reality the calculations can be complex. What happens if an employee submits a claim late because they get their maths wrong?
In Adedeji v University Hospitals Birmingham NHS Foundation Trust, the employee was a consultant surgeon. After a long capability and conduct procedure, he resigned and claimed constructive dismissal and race discrimination. He lodged his tribunal claims late, despite being warned twice by his legal advisor to lodge any claim within the normal 3-month limitation period. The employee mistakenly thought that he would get an extension of time by contacting ACAS afresh despite having received an EC certificate. The employment tribunal refused to grant him any extensions of time. The employee appealed. The EAT dismissed his appeal so the employee appealed to the Court of Appeal.
The Court of Appeal agreed with the EAT’s decision. The EC certificate was valid which meant the employee’s claims were out of time. The employment tribunal’s job then was to decide whether there was a reasonable excuse for that. The employee was a highly educated and intelligent person with access to legal advice. The tribunal had considered those facts to be highly relevant when making its decision not to extend time, and that was not unreasonable.
This case is good news for employers, but it doesn’t mean that all claims submitted late will be rejected. As in this case, the facts will be highly relevant. Here, the employment tribunal felt that it was unreasonable for a consultant surgeon with access to lawyers to claim ignorance of the law and its time limits. For a less educated employee, or one without access to legal advice, the situation might be different. In those circumstances, an employment tribunal might be more forgiving for someone’s misunderstanding of a fairly complicated legal procedure.
