If a Claimant goes to Acas for Early Conciliation after a primary time limit has expired, is there a month’s grace to present a claim form after the end of Early Conciliation?
No, held the EAT in Pearce v Merrill Lynch. The Claimant brought claims for detriments arising from protected disclosures outside of the 3-month time limit. He had been off work due to ill-health for over 4 months, taking legal advice on 5th December, out of time. His solicitors took 16 days before starting early conciliation with Acas, which ended on 8th January. The claim was presented on 7th February. The tribunal held that although it had not been reasonably practicable for the Claimant to have put the claim in on time, it was not presented within a reasonable time after the 3-month time limit had expired, so it was dismissed as out of time.
The delays in going to Acas and waiting a month after the end of early conciliation were not explained by the Claimant. The tribunal inferred the latter delay was due to a mistaken belief of the Claimant’s advisers that a month’s extension of the limitation period under S207B(4) ERA was available – but that only applies when Early Conciliation starts during the 3-month time limit.
The EAT turned down the Claimant’s appeal. It considered whether the Claimant’s delay was reasonable and had no explanation. The employment tribunal did not have to look for a precise date when the claim could have been presented, it could look at a period of time - here from 5th December to 7th February - and had no explanation why the claim hadn’t been presented sooner. Therefore it was entitled to refuse the extension of time.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary.