Failure to receive ACAS Early Conciliation certificate didn’t justify extending the time limit to bring unfair dismissal claim

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In Stratford on Avon District Council v Hughes, the Employment Appeal Tribunal held that a Claimant’s failure to receive an ACAS Early Conciliation certificate did not justify extending the time limit by which he needed to bring his unfair dismissal claim.

Mr Hughes worked as a solicitor for Stratford-on-Avon District Council from September 2008 to March 2019. He argued that he had been unfairly dismissed.

The starting point is that an employee has three months to present an unfair dismissal claim to an Employment Tribunal. Before they can do so, they must complete ACAS Early Conciliation. At the end of this process, the employee receives a certificate from ACAS which they will need to pursue a claim.

In this case, ACAS telephoned Mr Hughes to say that the District Council no longer wanted to continue with the conciliation process, and that ACAS would send him a certificate to that effect. The e-mail with the certificate never reached Mr Hughes’ inbox.

Mr Hughes was going through a challenging time, so waited to receive the certificate before submitting an Employment Tribunal claim. The following month he called ACAS, which re-sent the certificate, explaining when it was originally sent. Mr Hughes submitted his Employment Tribunal claim three days after the time limit expired.

The Employment Tribunal held that whilst the claim was “on the face of it out of time…it was not reasonably practicable for the Claimant to have presented his claim” before the time limit was due to expire. Where an Employment Tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of a period of three months, it may consider a complaint presented to it “within such further period as the tribunal considers reasonable”. Here, the Employment Tribunal extended time on the basis that it was not reasonably practicable for Mr Hughes to present the claim in time, because receiving the ACAS Early Conciliation certificate was a prerequisite to him bringing a claim.

Stratford-on-Avon District Council appealed, and the case went to the EAT.

The EAT held that the Employment Judge’s reasoning was flawed. The Tribunal should have asked “whether in all the circumstances it would have been reasonably practicable for the Claimant to have obtained the certificate earlier”. It therefore allowed the appeal.

This case provides a reminder about the importance of complying with Employment Tribunal time limits.