Early Conciliation and Second Certificates

For Employment Tribunal (ET) claims lodged on or after 6 May 2014, it is a legal requirement, unless an exemption applies, for the claimant to first notify the Advisory, Conciliation and Arbitration Service (Acas) by completing an Early Conciliation (EC) notification form. ET claims will not be accepted unless this procedure has been followed and a formal EC certificate has been issued. Taking part in EC is, however, voluntary.

Because the introduction of EC impacts on ET time limits, the rules regarding these were changed accordingly. When a potential claimant notifies Acas under the scheme, this will 'stop the clock' for the time limit that applies for presenting the claim to the ET until the EC certificate is received. Where the EC service is used, conciliation is intended to take place during one calendar month, but this can be extended by a further 14 days if both parties agree that more time is needed and Acas believes that the claim is close to settlement. If, at the end of this period, the matter has not been resolved, the case will be closed and a certificate issued. If Acas concludes that settlement is not possible, the pause on the limitation period ends on the day that the prospective claimant receives the EC certificate. If the time limit would expire before, or less than a month after, the date the EC certificate is received, it is extended until one month after that date. Early case law has established that the extension of time for bringing a claim will only apply where the EC takes place during the primary limitation period.

In HM Revenue and Customs v Garau, the Employment Appeal Tribunal (EAT) considered whether more than one EC certificate can be issued by Acas and what effect, if any, a second certificate has on the running of time for limitation purposes.

Mr Garau worked for HM Revenue and Customs (HMRC) as an administrative assistant. After he had been on long-term sickness absence, he was given notice of termination of his employment on 1 October 2015. This was due to expire on 30 December 2015. On 12 October 2015, Mr Garau contacted Acas, which issued an EC certificate on 4 November 2015.

On 28 March 2016, Mr Garau again contacted Acas, one day before the primary three-month limitation period for bringing an ET claim would have expired. A second EC certificate was issued on 25 April. One calendar month later, Mr Garau presented claims for disability discrimination and unfair dismissal.

The issue arose as to whether or not the claims were out of time.

The ET could see nothing in the relevant legislation that opposed the view that the second EC certificate 'stopped the clock' for limitation purposes. Such a conclusion was within the spirit of the legislation and so Mr Garau's claims were issued in time.

On appeal to the EAT, HMRC contended that the legislation only requires a claimant to comply with the mandatory EC scheme once. Mr Garau's second certificate was not necessary and therefore had no effect on the running of time for limitation purposes.

The EAT agreed with HMRC's argument. The EC provisions do not allow for more than one certificate per 'matter' to be issued by Acas. If a second, purely voluntary, EC certificate is issued, this is outside the statutory scheme and has no effect on the limitation period. The ET was wrong to find otherwise.

The three-month primary time limit applicable to Mr Garau's claims expired on 29 March 2016 and they were therefore presented out of time.

In handing down its judgment, the EAT was keen to stress the value of continuing voluntary conciliation under the auspices of Acas, which has been available for decades and is to be encouraged.