Time limits and ACAS early conciliation
Thursday 6th April 2017
In Fergusson v Combat Stress, a Scottish ET has held that only early conciliation after the effective date of termination is to be used when calculating time limits for bringing claims.
ACAS received Ms Fergusson’s EC form on 14 July 2016 and issued her EC certificate, enabling her to present a claim, on 14 August 2016. Ms Fergusson’s employment terminated on 12 August 2016 and therefore the usual 3 month time limit expired on 11 November 2016. Ms Fergusson’s claims were presented on 18 November 2016. It was argued that the original time limit was extended by the duration of the EC period, beginning the day after the EC application is submitted and ending on the day the EC certificate is issued. This interpretation was consistent with 2 English ET decisions.
However, the Scottish ET disagreed, holding that the purpose of section 207B is to act as a “stop the clock” provision, allowing for a particular period to be discounted when calculating the time limit. However, the clock cannot be stopped before it has started. Only those EC days after the EDT, which otherwise reduce the usual time limit, are discounted.
As Ms Fergusson’s EDT was 12 August and ACAS issued the EC certificate on 14 August, only 12, 13 and 14 August should be discounted when calculating her time limit. Ms Fergusson’s claims were, therefore, out of time.
The ET then considered whether it was reasonably practicable for Ms Fergusson to bring the claims in time. Her solicitor’s interpretation of section 207B was not thought negligent, given the lack of available guidance and the fact it was consistent with two English ET decisions. It was considered reasonable for the solicitor to have interpreted section 207B in this way and, as Ms Fergusson’s claims were presented only 4 days late, they were allowed to proceed.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.