Employment tribunals' time limits - What a business needs to know

In any workplace, there will inevitably be situations where employees manifest some kind of grievance related to their employment. If it is not possible to resolve that grievance at an early stage, it may proceed to the point at which a claim is made to the Employment Tribunal.

One aspect of the tribunal process with which you may not be familiar is that there are specific time limits that the employee must observe when making a claim – if they don’t adhere to those limits, it can mean that their claim may be struck out by the judge before it even reaches the stage of a hearing.

The time limit depends on what type of claim it is:

• 3 months minus 1 day – for most claims

• 6 months minus 1 day – for claims about statutory redundancy pay or equal pay only

If the employee is going through grievance, disciplinary or appeal procedures, this does not change the time limit, regardless of how long the procedures are taking.

Additionally, the date on which the claim has to be presented does not change if it is not a working day.

When does the time limit begin?

Generally speaking, the clock starts from the point at which the inciting incident occurred.

In the case of unfair dismissal, this would be the “effective date of termination” which generally means the last day of the employee’s notice period, or the date they were dismissed if no notice was given.

In the case of unlawful deduction of wages, the time limit begins on the last date on which the employer could legally have made the payment, or at the end of a ‘series’ of unlawful deductions from wages in respect of all the deductions.

For discrimination claims, the time limit begins from the most recent discriminatory act itemised on the claim.

Early Conciliation

Following the introduction of mandatory Early Conciliation into the tribunal process in 2014, employees have to refer any potential claims against their current or former employer to ACAS before being allowed to issue a claim in the Employment Tribunal.

When the employee notifies ACAS that they want to make a tribunal claim, they will be offered what is known as early conciliation. This is intended to explore whether the dispute can be resolved before it reaches the costly stage of a tribunal hearing, and thereby reduce the pressure on the tribunal system as a whole.

The early conciliation process involves a conciliator from ACAS talking to both the employee and employer. If both parties agree to early conciliation (and it must be both parties) then the time limit is paused for up to six weeks while the process takes place. Depending on when during the time limit contact is made with ACAS, once the Early Conciliation period expires without settlement being achieved the Claimant will have the balance of the original time limit within which to submit their claim to the Employment Tribunal, or at least a month following the date of the Early Conciliation certificate being issued.

As can be imagined, establishing the correct time limit can be complex if the claim covers more than one problem, or the problem has occurred several times, or it is still ongoing.

A claim that’s within the time limit has to be taken seriously and you need to prepare for what might be protracted legal negotiations and discussions. On the other hand, a claim that is patently out of time is far more likely to fail at the first hurdle – although you can’t be entirely certain.

Why?

If the time limit has passed, then a claim can still be made to the Employment Tribunal but it will be the judge’s decision on whether it will be accepted or not.

There are two reasons for the time limits to be extended:

• Because it was not ‘reasonably practicable’ to have lodged the claim within the time limit, or

• because it is ‘just and equitable’ for the claims to be allowed late.

The former relates only to claims for unfair dismissal, unlawful deduction of wages and breach of contract, and the latter relates to claims under the Equality Act 2010 (discrimination claims), claims under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2002, regulation 8(3) and Fixed Term Employee (Prevention of Less Favourable Treatment) Regulations 2002, regulation 7(3), and claims for statutory redundancy payments.

For the ‘reasonably practicable’ test, the claimant must satisfy the tribunal that it was not reasonably practicable to lodge the claim within the 3-month time limit, and also that the time which elapsed after the 3 month limit and before the claim is lodged was a ‘reasonable’ period.

With the ‘just and equitable’ situations, the main issue is whether a fair trial will still be possible if the time limit were to be extended.

Where the time limit is extended by the early conciliation requirement, the power of the Employment Tribunal to extend a time limit, where it was not reasonable practicable to submit the claim for example, is in respect of the time limit as extended by the early conciliation process.

Therefore, although in most cases the time limit will be strictly enforced, it can’t be guaranteed and it would not do to rely on this. The wise employer will wait till confirmation has come through from the tribunal that the claim has been struck out.

As we have mentioned, this is a complex area of employment law and it would be easy to get it wrong, which could end up with you jeopardising the successful outcome of a tribunal hearing. We would therefore recommend you speaking to an employment law expert at the point that you are advised by ACAS that a claim has been lodged, or even before that if you have an intimation that a claim may be forthcoming.