Almost all Employment Tribunal claims must be started within 3 months (3 months less 1 day) from the act you want to complain about. Employment Tribunal claims are also required to comply with rules on pre claim conciliation by ACAS, called Early Conciliation.
Do I have to go to ACAS before starting a claim?
- It is compulsory to initiate the Early Conciliation procedure before starting a claim, and in most cases, you must approach ACAS regarding Early Conciliation within 3 months (3 months less one day) from the act you want to complain about.
- However, it is voluntary whether you conciliate or not as either the claimant or the respondent in any claim can refuse to participate in it.
What is conciliation?
Conciliation is a process whereby ACAS helps parties to a dispute find a solution that both will find acceptable instead of going to Tribunal. More information on conciliation is available at www.acas.org.uk.
ACAS conciliation is independent, confidential and free. The conciliator can talk through the issues with both sides, talk through possible options and discuss how you may be able to resolve the dispute without going to tribunal. But the ACAS conciliator will not give advice about how good a claim is or what compensation might be obtained. They cannot takes sides, represent either party, tell you whether to agree on a settlement, say how strong or weak your case is or help you prepare for Tribunal.
Conciliation takes place over the phone or by email for up to 6 weeks.
What do I need to put in the Early Conciliation form?
Prior to submitting a Tribunal claim to an employment tribunal, you need to submit an Early Conciliation form (“an EC Form”) to ACAS containing basic details of the prospective claimant (you) and the prospective respondent(s) (usually your employer and potentially others – see below). The form can be submitted either by post, by calling ACAS and giving the information by telephone, or online to ACAS’ website at www.acas.org.uk. The basic details will be your name and address as the claimant and the respondent’s name and address (usually your employer). It’s really important you make sure you put the respondent(s)’ correct legal name, so if you are claiming against your employer do check your payslip, contract etc.
If submitting online, you should receive an automated email acknowledgment. You need this so as to calculate time limits, see below. An ACAS officer will then be appointed to the “case” to conciliate.
What happens if I want to claim against an individual as well as an organisation?
If you’ve got a discrimination claim or a protected disclosure (whistleblowing) claim, it can be against your employer and any individual who you believe discriminated against you. If you are intending to pursue a claim against an individual as well as the organisation that employs you, you must include the name and address of both your employer and the individual on the Early Conciliation form.
It’s important to get the names right. If you go on to make a claim, the tribunal may reject it if the names on the tribunal claim form and the Early Conciliation certificate don’t match.
What happens after I submit the EC Form?
The first step is that the ACAS officer will contact you, as the prospective claimant, to ask if you would like ACAS to conciliate the dispute. If you agree to conciliation, ACAS will attempt to contact the prospective respondent(s) identified on the Early Conciliation form to ask if they agree to conciliate the dispute. If the prospective respondent(s) also agree, the ACAS officer will try to promote settlement between all parties. This dialogue can go on for up to 6 weeks. If no settlement is reached in that time, ACAS will issue an EC certificate. This certificate will contain a unique reference number which you must then put in the ET1 form which you will need to use to start a claim in the employment tribunal. The EC Certificate is proof that you have complied with your obligation to contact ACAS prior to making a claim in the tribunal.
If ACAS are not able to get in touch with the prospective respondent(s) following reasonable attempts, then ACAS must conclude that a settlement is not possible, and they will issue an EC Certificate.
You are assumed to have received an electronic certificate on the day it is sent by ACAS. If the certificate is sent by post, you are assumed to have got it 2 days after it is sent. The date of receipt of the certificate is important in calculating time limits, see below.
What happens to time limits during Early Conciliation?
Almost all Employment Tribunal claims must be started within 3 months (3 months less 1 day) from the act you want to complain about.
The Early Conciliation procedure makes some changes to the normal time limit rules. These are often referred to as “stop the clock” provisions and their purpose is to prevent claimants from being disadvantaged by having the period for bringing a claim reduced because they have entered Early Conciliation.
- During the Early Conciliation procedure the time limit period for the employment tribunal claim stops running. The Early Conciliation procedure runs from the day on which ACAS receives your Early Conciliation form (this is known as Day A), until the day you receive the EC Certificate from ACAS (this is known as Day B). So in order to work out when a time limit expires, the period beginning with the day after Day A and ending with Day B is not counted.
- If the normal time limit for bringing the claim would expire during the Early Conciliation procedure or within a month of it ending (i.e. within one month of Day B), the time limit for putting the claim in will instead end one month after Day B.
- The claimant’s normal deadline for lodging her claim is 10th June. She submits the EC form on 28th May to ACAS. The ACAS certificate is issued by email on 7thJune. The new deadline for her to start her claim is 7th July.
- The claimant’s normal deadline for lodging her claim is 10th June. She submits the EC form on 9th June. The ACAS certificate is issued by email on 8th July. The new deadline for her to start her claim is 8th August.
- The claimant’s normal deadline for lodging her claim is 10th June. She submits the ACAS form on 15th April. The ACAS certificate is issued on 20th April. The deadline for her to start her claim is now 15th June.
Note that a respondent can also ask for Early Conciliation. However where the respondent asks for it, this will not change the time limitation periods for the claim.
What happens if I have more than one claim?
If you decide to bring a claim for acts that occurred after the Early Conciliation period has concluded, you will need to think very carefully about whether you need to submit a new Early Conciliation form to include this claim before issuing proceedings.
If the new claim is related to claims already covered by the EC certificate, and is against the same prospective respondent(s), it is unlikely that an Employment Tribunal will require an additional certificate for this claim. For example, if you intended to bring a claim for only victimisation, but after submitting the Early Conciliation form, you decide you also want to bring a claim for direct disability discrimination arising from the same facts, it is unlikely you will need to submit a new Early Conciliation form.
Where the claims are unrelated, or are against a different prospective respondent, it is likely a new Early Conciliation form should be submitted. Where there is uncertainty as to whether the claims are related, it may be sensible to start the Early Conciliation process again and submit a new Early Conciliation form. However, you should first check whether you are close to the time limit for submitting your claim, to ensure you do not miss it in the process of submitting a new form.
If the new claim you intend to bring relates to an act that occurred after Day A but before Day B, only that part of the Early Conciliation period which occurs after the ordinary limitation period for that particular claim has started will be counted to extend time. The reason for this is that you cannot ‘stop a clock’ that has not yet ‘started’.
What should I think about before starting Early Conciliation?
- There are a number of reasons why settling a claim may well be advantageous to you which you can read more about here.
- Ideally, it would be a good idea to get advice about the likely value and strength of your claim before entering into Early Conciliation. However, if the time for you to bring your claim is about to run out, it would be prudent to initiate the Early Conciliation process first in order to stop the clock.
- During the Early Conciliation period, you must bear in mind time limits for filing your ET1 (claim form) with the tribunal. Be sure you leave enough time to prepare the necessary documentation and get it to the tribunal when the clock starts to run again.
- If you want to bring additional claims which are not covered by your EC certificate, get advice on whether you will need a new EC certificate to bring that claim.
What if I want to complain about several issues?
If you want to complain about several separate issues within the same Claim, you must count the time from each action you want to complain about. So time will run from the date of the earliest event.
For example, if the employer decided on 8 September 2022 not to promote you due to your pregnancy and on 3 October 2022, dismissed you because of your pregnancy, the time-limit for keeping both Claims in time is 7 December 2022. If you miss that deadline, you may only be able to bring a claim relating to your dismissal, the time-limit for which is 2 January 2023.
What if I want to mention earlier incidents?
You can refer to earlier incidents which are out of time as supporting evidence.
And in some situations, the discrimination amounts to a continuing act, in which case, the three-month time window does not start to run until the discriminatory action stops or you leave the employment.
A continuing act is not defined in legislation. The tribunal will take all the facts into consideration when deciding whether there has been a continuing act. Generally, the tribunal will look at whether there is conduct or a state of affairs extending over a period of time. We have set out some relevant factors that may be taken into account below but there may be others depending on the particular case:
- Is the same action being repeated multiple times over a period of time (e.g. a repeated refusal of a request?)
- Are the individual actions being complained of being carried out by the same or different people (e.g. are all actions by one line manager over a period of months)?
- Is the act complained of a continuing act, or a one-off act which has continuing consequences?
- The length of time between individual acts does not determine whether or not it is a continuing act. The acts can take place several months apart but may still be seen as a continuing act if, for example, they are carried out by the same person.
- An ‘act’ includes a failure to act when action should have been taken.
It is up to the tribunal to decide if there has been a continuing act, and they often do not make this decision until the final hearing when they can take all the parties’ evidence into consideration. To avoid wasting time preparing for claims that may later be found to have been brought out of time, you should consider this point carefully and seek legal advice if possible at the start.
What if I am late?
The tribunal has limited discretion to allow in late Claims (those outside the time-limit). The test for this is different depending on whether the claim is about discrimination or something else. If you are worried that you are out of time to make a claim, act quickly and, if possible without adding to the delay, seek specialist advice.
The tribunal will take into account various factors including the reasons the Claim is late, how late it is, whether the employer is prejudiced by the lateness, and whether it looks like a good Claim. A Claim may be accepted outside the time limit if facts have come to light after the time limit has expired which the Claimant knew nothing about. For example, a woman made ‘redundant’ while on maternity leave discovers some months after her dismissal that her post was not really redundant at all and has been filled by someone else. In such a case, the tribunal must consider whether or not it was reasonable for the Claimant to realise she had a claim before the new facts came to light.
Even if a worker and employer are going through an internal grievance or disciplinary procedure, this does not extend the time limit by which the Claim must be made to a tribunal. You should be wary of long-drawn-out procedures by your employer in case it takes you outside the time limit for making a Claim.
It is hard to get the tribunal to allow in late Claims. Never let a deadline pass relying on this. If there is an ongoing internal process, you and/or your employer can ask the tribunal after you have lodged your Claim for it to be paused (“stayed”) while the internal process is completed.
Time limits can be tricky and we recommend getting specialist advice if you are unsure about when the time limit is to bring your claim.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.