Author: Caroline Philipps
“We recently dismissed an employee, who left saying that he would “see us in court”! How long does he have to bring a claim?”
The general rule is that an employee has three months less a day from the date of the relevant act or acts complained of – in this case, a dismissal – to bring a claim in the Employment Tribunal.
In discrimination cases where an employee may allege the act is ongoing, the three month limit starts on the date of the last act in what is alleged to be a series of acts, meaning acts which happened over three months ago may actually still be considered.
However, there is now a mandatory Early Conciliation (EC) process the employee in question must follow which applies to nearly all claims, including those for unfair dismissal. The intention is to encourage parties to resolve matters at an early stage without recourse to expensive tribunal proceedings.
The EC process extends the time limit for employees as follows.
When the employee approaches the Advisory Conciliation and Arbitration Service (Acas) to initiate EC (Day A), the employee essentially “stops the clock”. If EC does not result in a settlement, time starts running again when the employee receives an EC Certificate confirming he has complied with the EC process (Day B).
The EC period between Day A and Day B is usually one month. Acas has the power to extend this period by an extra 14 days if it considers there is a reasonable prospect of achieving a settlement and the parties agree. Conversely, if you don’t see any prospect of settling, Acas can end the EC period earlier.
Although the rules surrounding EC are complex, the intention is that the employee should always have at least a month within which to bring a claim after EC. So even if your former employee initiates EC at the 11th hour within the original time limit, they will still usually have an extra month to lodge their claim.
You won’t always be immediately alerted to the fact an employee has initiated EC, but if and when Acas do get in touch during the EC period, it is wise to get your legal adviser involved immediately, so that it can advise you fully on the applicable process and deadlines.
Tribunals usually take a very strict approach to time limits in unfair dismissal cases. If your former employee submits their claim late, it will only be accepted in truly exceptional circumstances. For example, the employee is unlikely to be able to rely on a last minute computer glitch to extend time and an application to extend time should usually be defended robustly.
Caroline Philipps, Associate, Fladgate LLP (firstname.lastname@example.org)