Mr M Cornforth (Solicitor). For the v Ms M Charles (Legal Executive). — 2022

The claimant was dismissed by reason of redundancy, with the effective date of termination found to be 14 November 2020. He contacted ACAS on 2 September 2020 and received the early conciliation certificate on 16 October 2020, giving a 44-day conciliation period for the purposes of s.207B ERA 1996. The unfair dismissal claim was then presented on 29 March 2021, which the tribunal calculated was 44 days after the ordinary limitation period had expired on 13 February 2021.

The principal issue was whether the 44 days of early conciliation could be added on to the end of the limitation period, or whether the clock simply stopped during the conciliation period. The tribunal held that s.207B(3) ERA 1996 meant the period between Day A and Day B was not to be counted, and followed the approach in Tanveer and Serra Garau that the limitation clock stops during early conciliation. It rejected reliance on Barua because that case concerned different, now repealed regulations with different wording.

The tribunal also rejected the claimant's alternative argument that it was not reasonably practicable to present the claim in time. It found that the claimant had the conciliation period followed by the normal three-month period in which to issue the claim, and that the failure to do so was due to inaction by his solicitors. The tribunal referred to Marks & Spencer plc v Williams-Ryan in support of the proposition that solicitor fault defeats an argument that it was not reasonably practicable to comply with the time limit.

On that basis, the tribunal held that the unfair dismissal claim was issued out of time, that it had no jurisdiction to hear it, and that the claim was struck out. Because the time-limit issue was dispositive, the tribunal did not proceed to consider the deposit order under rule 39 of the Employment Tribunal Rules of Procedure 2013.