This week the FC News team has flagged for Employment lawyers the EAT's decision in Raison v DF Capital Bank Ltd concerning the effect of ACAS Early Conciliation on limitation periods.
In Raison v DF Capital Bank Ltd [2025] EAT 86, the EAT dismissed an appeal concerning whether the Early Conciliation (EC) period under s 207B(3) Employment Rights Act 1996 (ERA 1996) extends the three-month limitation period by the entire EC period, or only by the portion occurring after the effective date of termination (EDT).
The claimant's employment with the respondent terminated on 17 February 2023 and she had initiated EC on 13 February 2023, which concluded on 28 February 2023. The claimant brought a claim of automatically unfair dismissal on 30 May 2023. The question was whether the limitation period was extended by the full EC period or only by the days spent in EC post EDT. If the claimant could rely upon the entire EC period, her claim would be deemed as presented in time, whereas if she could only rely upon the days after the EDT, then it was presented three days after the prescribed time limit, which expired on 27 May 2023.
The employment tribunal held that it had no jurisdiction to hear the claim as it was presented out of time. The tribunal applied HMRC v Garau [2017] ICR 1121 (see ACAS Early Conciliation, Q&A here), stating that the principle that "a clock which has not started to run cannot be paused" is effective regardless of whether the start date of the limitation period falls after the closure of EC or within the EC period. The tribunal concluded that only the number of days in the EC period after the EDT should be taken into account for the purposes of s 207B(3). The tribunal also found that the claimant's advisers could not have reasonably concluded that waiting until 30 May to file the claim was safe in light of the uncertainty as to the effect of s 207B(3). The claimant appealed to the EAT.
The EAT, upholding the tribunal's decision, held that the effect of s 207B(3) is to extend the limitation period by the number of days in the EC period that occurred after the EDT of the claimant's employment and her claim was therefore out of time. The opening words of s 207B(3) are clear and unambiguous in identifying the exercise that this provision is directed to, which is to work out when a time limit set by a relevant provision expires. There is no question of including a period before the date when limitation started to run in this computation. Heather Williams J agreed that the statutory purpose was to prevent disadvantage to claimants engaging in EC during the limitation period, not to grant an extension by days that occurred before limitation started to run. The judge considered that Garau was at the very least highly persuasive authority in support of her conclusion as to the effect of s 207B(3). The judge also rejected the argument that it was not reasonably practicable to file the claim in time. Given the uncertainty as to the correct interpretation of s 207B(3), the only reasonable course would have been to present the claim before limitation expired on either interpretation of the statutory provision.
For more information on EC generally, see Procedure/ACAS Early Conciliation.
First published on the Employment News Service on 27 June 2025
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