Ms L Benyon v Gorgemead Limited — 2020

The claimant presented her claim on 19 December 2019. The pleaded case included constructive unfair dismissal under s.98 ERA 1996 and detriment claims said to arise from public interest disclosures under s.47B ERA 1996 and/or health and safety under s.44(1)(c) ERA 1996. She later sought to amend the case to add automatic unfair dismissal under s.103A ERA 1996 and/or s.100(1)(c) ERA 1996. The parties agreed that the effective date of termination was 23 August 2019 and that the claims were out of time unless the ACAS early conciliation extension in s.207B ERA 1996 applied.

There were two ACAS early conciliation periods: 10 January 2019 to 10 February 2019, and 10 September 2019 to 10 October 2019. The tribunal approached the issue by asking whether the second period related to the same matter as the first, applying the broad approach in Compass Group UK & Ireland Ltd v Morgan and the limitation authorities referred to in the judgment, including Commissioners for HM Revenue and Customs v Serra Garau, Treska and Romero. The claimant did not pursue any separate argument that it was not reasonably practicable to present the claim within the primary time limit.

On the documents and submissions, the tribunal found sufficient connection between the two periods of conciliation. It relied on the same parties and employment, the fact that the pleaded disclosures all pre-dated the first conciliation, the cumulative nature of the alleged treatment, and the grievance letter of 18 January 2019, which already contemplated possible dismissal. Although there was a significant gap between the conciliation periods, the tribunal found that little of significance had happened in that period and that the second conciliation was voluntary.

Because the second conciliation was voluntary, s.207B ERA 1996 did not extend time. The tribunal therefore held that it had no jurisdiction to hear the claim and dismissed it as out of time. The judge noted that the result may have prevented a meritorious claim from being heard, but treated the limitation question as binary.