If you start Acas early conciliation before your termination date any days prior to your termination date will not be added to your time limit.

The Employment Appeal Tribunal (EAT) has held in Raison v DF Capital Bank & ors that the effect of s.207B(3) of the Employment Rights Act 1996 is to extend the primary limitation period for an unfair dismissal claim by the number of days in the early conciliation period that occurred after the effective date of termination (EDT). Any days before the EDT could not be added to the EC period to extend time. The claimant’s claim was therefore presented late and out of time.

Ms Raison worked for DFCB as chief commercial officer before her employment was terminated in 2023. Her effective date of termination (EDT) was 17 February 2023 but she commenced Acas early conciliation (EC) before 17 February, starting the EC period instead on 13 February 2023, 4 days before her EDT. The EC period ended on 28 February 2023 when Acas issued her with her EC certificate.

On 30 May 2023 Ms Raison commenced an Employment Tribunal claim for automatic unfair dismissal on the ground that she had made a protected disclosure (whistleblowing).

DFCB assessed that her claim was out of time and that the ET had no jurisdiction to hear it.

Section 207B(3) provides that in calculating the time limit to present an ET claim the time between the day after Day A (when EC commences) and Day B (when EC ends – when the claimant receives the EC certificate) is not to be counted and operates to “stop the clock” on limitation. This has the effect of extending the ordinary limitation date by the number of days spent in the EC period.

Ms Raison’s position was that the entirety of the period during early conciliation should be added to the limitation date. DFCB disagreed. They said that only the days in the EC period falling after the EDT counted to extend time. This meant that her claim was 3 days’ late.

The tribunal found in DFCB’s favour. The claim was three days’ late and out of time. Ms Raison’s alternative argument was that it had not been reasonably practicable for her to bring the claim within the time limit. The tribunal found against her on this too. She had issued her claim based on professional legal advice which was incorrect: she should have filed by 27 May 2023. The EAT also rejected her argument on reasonable practicability. Tribunals adopt a pretty draconian approach to time limits especially when partiesare legally represented.

Ms Raison appealed to the Employment Appeal Tribunal but they agreed with the first instance decision. Only days after the termination date counted to extend time. The EAT relied on the highly persuasive authority in Revenue & Customs Commissioners v Serra Garrau. There has been conflicting case law on this point but the EAT and other tribunals are now sure to adopt this approach.

It’s a cautionary tale for professional advisers and litigants in person: if you file your claim at the very last minute you had better be sure you calculated the date correctly. A wiser approach is to think about issuing as soon as possible once early conciliation ends.