If Acas issues a second early conciliation certificate in respect of the same matter, does this extend the time for making a claim?
No, held the EAT in HMRC v Garau.
Mr Garau was given notice of termination of his employment by HMRC on 1 October 2015, expiring on 30 December 2015. On 12 October 2015, he contacted Acas for the first time, using the mandatory early conciliation procedure. On 4 November 2015, Acas issued an early conciliation certificate. On 28 March 2016, he contacted Acas for a second time. The next day, 29 March 2016, was the day on which the primary three-month limitation period expired. On 25 April 2016, Acas issued a second certificate.
On 25 May 2016, Mr Garau presented his claims for unfair dismissal and disability discrimination. In deciding whether the claims were presented in time the employment tribunal held that he could rely upon the second early conciliation certificate to 'stop the clock'. In its opinion, the claims were issued in time.
But, HMRC contended that the second certificate was unnecessary and had no effect on the running of time for limitation purposes. The limitation period of three months therefore expired in the normal way on 29 March 2016. This was because first early conciliation certificate did not affect the running of the primary limitation period, since it was issued before limitation had started to run at all.
The EAT agreed. Construing s.207B of the Employment Rights Act 1996 (and its counterpart in s.140B of the Equality Act 2010) the legislation allowed for only one certificate to be required for 'proceedings relating to any matter'. A second certificate was unnecessary and did not assist the Claimant. The second, voluntary certificate could not modify the limitation period.
That was not to say that voluntary conciliation through Acas should be discouraged. But it could not modify the time limits concerned.
Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.