In the case of Raison v DF Capital Bank Ltd, the Employment Appeal Tribunal (EAT) clarified that the portion of an Early Conciliation period that started before the termination of employment does not extend the time limit for bringing an unfair dismissal claim.
Early conciliation
Claimants must participate in Acas early conciliation (EC) before they can present most tribunal claims. The time limit to bring their claim is extended to take account of the period of time spent on the EC procedure.
This calculation is not always straightforward and involves identifying Day A and Day B:
- Day A is the day on which the claimant contacts Acas.
- Day B is the day on which the claimant receives the EC certificate.
The Employment Rights Act 1996 provides that "in working out when a time limit expires the period beginning with the day after Day A and ending with Day B is not to be counted". This is often called the “stop the clock” provision.
Facts
Ms Raison was employed as Chief Commercial Officer of DF Capital Bank Ltd. Her employment was terminated on 17 February 2023 for alleged gross misconduct. She initiated the EC process on 13 February 2023, four days before her termination, and received her EC certificate on 28 February 2023. She subsequently brought a claim for automatic unfair dismissal based on whistleblowing on 30 May 2023.
This unfair dismissal claim should have been brought within three months of the termination of employment, subject to the stop the clock provisions. In this case, the normal three-month time limit would have expired on 16 May 2023. Ms Raison argued that the entire EC period should stop the clock - Day A being 13 February and Day B being 28 February. This 15-day period would have given an extended time limit of 31 May 2023. Her employer argued that she was out of time as only the 11 EC days occurring after the termination date should be considered, giving a time limit of 27 May.
The EAT decision
The EAT confirming that only EC days occurring after the termination of employment can extend the time limit. Days before the termination, when the time limit has not yet started to run, do not count. The Claimant was therefore out of time.
The EAT held that the Employment Rights Act is clear and unambiguous on this point – it is designed to prevent claimants from losing time during the normal time limit due to EC, but it does not provide an extension for EC days occurring before the time limit starts to run. The EAT also held that it was reasonably practicable for Ms Raison to have submitted her claim within the primary time limit, especially given that she had legal advice.
Comment
The EAT said that it would give claimants an inexplicable advantage or bonus if they were able to inflate their normal time limit, before the time limit had even begun. The clock can only be stopped if it has already started.
Under the Employment Rights Bill, the primary time limit to bring claims in the employment tribunals will be extended from three to six months. The government currently anticipates that these provisions will come into force in October 2026. The government has also said it may consider extending the early conciliation period from its current six weeks to take into account this extended time limit.
Frances Rollin
Bea Ballard