|At the Tribunal|
|On 13 October 2017|
NAOMI ELLENBOGEN QC
(DEPUTY JUDGE OF THE HIGH COURT)
Transcript of Proceedings
|For the Appellant||MR NATHANIEL CAIDEN
Luton Borough Council
|For the Respondent||MR ATTIQ MALIK
Liberty Law Solicitors
JURISDICTIONAL POINTS - Claim in time and effect date of termination
PRACTICE AND PROCEDURE - Application/claim
PRACTICE AND PROCEDURE - Preliminary issues
The statutory provisions in the Employment Rights Act 1996, the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and the Equality Act 2010, which operate to extend time limits to facilitate conciliation before the institution of proceedings, are to be applied sequentially and do not provide for alternative limitation periods.
NAOMI ELLENBOGEN QC (DEPUTY JUDGE OF THE HIGH COURT)
"Having regard to the extension of time limits, as a result of the parties being engaged in ACAS conciliation, were the claims presented in time and if not should time be extended to allow the claims to proceed to a final hearing on the basis that either it was not reasonably practicable to have [sic] in time or it is just and equitable to do so?"
The Relevant Statutory Provisions
"111. Complaints to employment tribunal
(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.
(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal -
(a) before the end of the period of three months beginning with the effective date of termination, or
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
(2A) Section … 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply for the purposes of subsection (2)(a)."
"207B. Extension of time limits to facilitate conciliation before institution of proceedings
(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a "relevant provision").
But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A.
(2) In this section -
(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and
(b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.
(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.
(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.
(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section."
Sub-section 207B(3) of the ERA
Sub-section 207B(4) of the ERA
The Parties' Submissions
The Respondent's Submissions
The Claimant's Submissions
19.1. The time limit set out in sub-section 111(2)(a) is expressly "subject to the following provisions of this section".
19.2. Sub-section 111(2A) then provides that section 207B applies for the purposes of sub-section 111(2)(a).
19.3. Sub-section 207B(3) requires that, in working out the expiry of the time limit set by section 111, the specified period is to be excluded. There is no saving clause, ousting its application in the event that sub-section 207B(4) applies.
19.4. Sub-section 207B(4) applies where the time limit set by a relevant section would expire within the specified period "if not extended by this subsection". The Respondent's construction is consistent with the alternative wording, "if not extended by this section", which the draftsman did not use. Throughout section 207B, care has been taken to distinguish use of the word 'section' from use of the word 'sub-section'.
19.5. Thus, the time limit set by sub-section 111(2)(a) of the ERA necessarily encompasses the application of sub-section 207B(3). If that time limit, so modified, would expire within the period specified by sub-section 207B(4), the latter makes provision for a further modification.
19.6. It follows that there is no separate 'original time limit', properly so-called: there is one time limit, the expiry of which is determined by the combined application of sections 111 and 207B of the ERA. Whilst the wording of the equivalent provisions in the EqA and the 1994 Order is not identical, it makes equally clear that the applicable time limit in each case is to be determined by a combined application of the two relevant sections, or articles (as the case may be).
"Section 8: Extension of limitation periods to allow for conciliation
This section gives effect to Schedule 2, which sets out how the relevant time limits for bringing a claim will be extended where necessary to provide sufficient time for early conciliation to take place and to ensure that the claimant is not disadvantaged."
"… Schedule 2 amends various pieces of primary legislation so that the relevant time limits for bringing a tribunal claim will be extended where necessary in order to provide sufficient time for early conciliation to take place so that the claimant is not disadvantaged. … The amendments made by Schedule 2 address concerns that the early conciliation process will disadvantage prospective claimants by consuming some of the limitation period and therefore the time in which they have to prepare any claim that they want to lodge with an employment tribunal, and thereby dissuade them from engaging fully with the conciliation offered by ACAS.
Schedule 2 effectively stops the clock for those jurisdictions where early conciliation applies so that the time during which a claim is subject to the early conciliation process will not count for the purposes of calculating the passage of the limitation period for that claim. In addition, where the limitation period would expire during the prescribed period for early conciliation, or within a month after the day on which the ACAS certificate is deemed to have been received, Schedule 2 automatically extends the limitation period for that claim so that the claimant has one calendar month from the deemed date of receipt of the certificate in which to lodge that claim at an employment tribunal." (emphasis added)