31 Mar 2023
Litigation should be a last resort. Most issues that arise during employment can be resolved, either informally, or by using a more formal grievance process and appeal process. However, it is important to understand that time limits apply to Employment Tribunal claims regardless of how long internal procedures are taking. Therefore, it is important to make sure that measures are taken to protect yourself, in the event that the employment issue cannot be resolved.
In this article we look at the time limits for the most common types of Employment Tribunal claim and what steps should be taken to ensure those time limits are not missed.
Time Limits
Most Employment Tribunal claims have a time limit of 3 months, minus 1 day, from the date of the unlawful act. Therefore, if the unlawful act occurred on say 30 March 2023, the time limit for pursuing a claim would expire on 29 June 2023.
The only exceptions to this are claims for statutory redundancy pay and equal pay, which have a time limit of 6 months, minus 1 day.
The following are the types of claims that most commonly arise. The 3 months, minus 1 day, time limit runs from different acts (or omissions) in different types of claims, so always seek advice about your specific matter.
In discrimination claims, the time limits start to run from the date of the act of discrimination that you are complaining about. If there are a series of discriminatory acts the time limit may start to run from the date of the last act of discrimination. However, this is subject to being able to establish a ‘series’ of discriminatory acts, which isn’t always easy, and sometimes a “series” can be broken if there is a long gap between events. There are other trigger points for calculating time limits in cases of discriminatory policies or procedures or disability cases, for example, for failures to make reasonable adjustments, but the rules are complex. The safest way to approach the time limits is to identify the act you want to complain about and assume the 3-month time limit runs from then.
Therefore, if you believe you have a possible claim for discrimination, you should identify a clear chronology of events, setting out which act(s) you believe are discriminatory and calculate your 3 months, minus 1 day, time limit from that act/those acts.
Calculating time limits in discrimination claims is often extremely tricky and legal advice should be sought at an early stage.
In relation to claims for pay and wages, the time limit starts to run from the date you were not paid correctly.
In a similar way to discrimination cases, if there is a series of underpayments, then you may be able to run your time limit from the date of the last underpayment in the series and recover up to 2 years’ worth of losses (2 years immediately prior to lodging your Tribunal claim). However, again this is dependent on there being a ‘series’ of deductions and there is currently case law (on appeal) to suggest that gaps of 3 months or more between underpayments will break the chain. It is a question of fact as to whether there is a series or not.
Where an individual remains an employee, they can’t pursue a breach of contract claim in the Employment Tribunal. Such a claim has to be pursued in the County Court, which has a time limit of 6 years from the date of the alleged breach.
However, breach of contract claims can be pursued in an Employment Tribunal once employment has ended (and provided the breach occurred within the 6 years prior to termination). There is then a time limit of 3 months, minus 1 day, from the date employment ended to pursue the claim.
- Unfair dismissal (including constructive unfair dismissal)
In cases of unfair dismissal time limits start to run from the ‘effective date of termination’. This generally means the date on which you were dismissed, if your employer did not give you notice, or the last day of your notice period if notice was given. You must identify your last day of service.
Working out the appropriate time limits can be complex, especially if your problem at work covers more than one type of claim for example both unfair dismissal and discrimination and/or there have been multiple incidents or the problem is still occurring. It is therefore important to try to identify your time limit early, with the benefit of legal advice.
- Where a time limit has passed
If the time limit has passed then it is extremely difficult to secure an extension of time from an Employment Tribunal. The tests for extensions of time vary depending on the type of claim and in most cases the time limits are strictly enforced. The time limit is generally more flexible in discrimination claims, particularly where there are a series of events over a period of time, and in some cases involving a breach of contract it might be possible to rely on a longer time limit in a different venue. However, each case will be fact specific.
ACAS Early Conciliation
If you believe you have grounds to pursue an Employment Tribunal claim, then the time limits can be paused by entering into ACAS Early Conciliation.
A form can be submitted online to the Advisory Conciliation and Arbitration Service (ACAS), called an ACAS Early Conciliation Notification. It is a simple form requiring your name and address and contact details and the name and address and contact details of the employer or person you are thinking of claiming against. When the form is submitted correctly and within the primary time limit, it will stop the clock and give you an extended period of time within which to lodge a claim with the tribunal. The amount of the extended period depends when you start and finish that process. ACAS Early Conciliation can last for up to 6 weeks.
Once an ACAS Early Conciliation Certificate is then issued by ACAS, time starts to run again.
The ACAS Early Conciliation Service is mandatory in most cases – you cannot lodge a claim unless you have first contacted ACAS to notify them of a potential claim - and is free of charge.
The period of ACAS Early Conciliation allows for a conciliator to speak to you and the person you are claiming against to see if the matter can be resolved. It may also be useful to lodge ACAS Early Conciliation if you are awaiting the outcome of an appeal against dismissal or an appeal against a grievance outcome. Often employers take a long time to consider complaints internally and so it can be useful to lodge ACAS Early Conciliation to protect yourself in respect of time limits, whilst you wait and see if the employer is prepared to resolve the issue for you. Your employer will be made aware that you have begun ACAS EC – sometimes that can help to focus their attention on solving your problem.
Practical Advice
If you have an employment dispute with your employer, it is essential that you identify the date/s upon which the unlawful act(s) occurred and keep a diary or chronology of events.
Missing the time limits can be fatal to a claim. It may be tempting to wait and see if the employer resolves your problem before seeking legal advice, however, be aware that the clock will probably be ticking and the use of internal procedures rarely extends those time limits. Be sure to seek advice from your professional association at an early stage.
This fact sheet is for general information only and should not be used as a substitute for legal advice.