Unsuccessful early consiliation

[gnarl]

Hi Guys

 

I'm after a quick bit of advice regarding time scales for ET application after going through early conciliation.

 

An incident happened at working on the 10th August 2016 for which I raised a grievance then appealed the grievance.

 

 

I had the results of the appeal on 7th November 2016 for which I still do not agree.

 

 

On the 8th of November I then submitted a request to ACAS for early concilliation which I'm told put a hold on the time given to apply for employment tribunal, which I believe is 3 months minus 1 day of the incident.

 

Now as far as I understand ACAS will not try and resolve this with my employer but if they fail they will issue me with a certificate which will enable me then to apply for employment tribunal and the clock starts again.

 

Does this then mean I've only got 2 days after ACAS issue the ceritificate to apply for employment tribunal?

 

Hope the above makes sense.

 

Gnarl

[becky2585]

No, you will usually have at least a month, but it's impossible to calculate your new limitation date at this stage as your certificate hasn't been issued yet.

[Guest topcat14]

Have to disagree with the reply from becky2585

 

I would be looking to establish why the grievance has taken all this time to get to this point ? Is the employer at fault ?

 

There needs to be a good reason why you are submitting a claim more than 3 months after the original event.

 

The conciilliator will give the employer time to respond maybe 1-2 weeks at most, but that will take you past 3 months so you need to act quickly.

[Guest topcat14]

Link to ACAS guidance

 

https://ec.acas.org.uk/

 

Note the first sentence in the guidance

[becky2585]

The PP is wrong. You need to contact ACAS within three months and your time limit is then extended by the EC process.

[Guest topcat14]

Statutory time limits in which to bring a claim

In virtually all cases, a claim must be brought within the time limits prescribed in the various statutes. In most cases the time limit is 3 months, beginning with the effective date of termination (for unfair dismissal) or the date of the act complained of (for discrimination and other claims). If a claim is presented outside the relevant statutory time limit then the Tribunal will have no jurisdiction to consider it unless a Claimant can persuade an Employment Judge to exercise his discretion to extend that time. The Judge is likely too seek evidence of the reason for the missed time limit and will then apply the appropriate test for the exercise of that discretion with respect to the nature of the claim.

 

Whilst a Tribunal office should consider time limits themselves on receipt of the claim form and reject it if out of time, it still a worthwhile step for an employer to perform the calculation themselves as they are often calculated wrongly by Claimants.

The time limit includes the particular day that the act or termination occurred on. 3 months beginning on 10 October will therefore expire on 9 January.

 

The actual time that the event occurred is irrelevant. For instance a dismissal that occurs late in the evening of 10 October will mean that the time limit starts running from the beginning of 10 October and not late in the evening of 10 October or run from 11 October.

 

A Claimant may be able to extend the time limit provided they can prove that it was not reasonably practicable to bring their claim within the time limit, or if it would be just and equitable to allow an extension. The burden is on them to prove this.

[Guest topcat14]

Further to the above

 

ERA 1996 Sub Sect 207B.......207B(3) and 207B(4) could provide relevant reasoning to present to a judge for making a claim past 3 months of the original dispute.

[steampowered]

Topcat14, the extract you posted was correct when it was written. I searched on google and it looks like it was written in 2013. However the law changed in the middle of 2014.

 

Now there is a requirement to go through ACAS conciliation. Once a potential claimant or respondent has contacted ACAS in a case to which the rules apply, ACAS will try to facilitate a settlement. If no settlement can be reached or the parties do not wish to conciliate, ACAS will issue a certificate marking the end of the process. The claimant must usually insert the certificate number onto their ET1, or the tribunal will not accept the claim.

 

If the ACAS conciliation was started within the 3 month time limit, the deadline for bringing a claim is extended until 1 month from receipt of the ACAS certificate.

[gnarl]

Hi Guys

 

I've been through ACAS early conciliation which was unsuccessful - basically went as follows

 

- Completed early conciliation form online

- Nothing happened for nearly 4 weeks

- Contacted by case handler one day before conciliation was due to end asking for extension as company had only just instructed

solicitors.

- Case handler asked what I wanted as resolution

- Case handler asked for clarification on a point regarding what I wanted as resolution

- Last last days of extension from ACAS advising they'd received a response from respondent confirm they did not want to make an

offer.

 

Hoping someones had experience of this and appreciate nobody has any details of my case. I've read through various sources that this is a normal tactic from solicitors to

 

- Find out what you want

- Then to end early conciliation to see if you actually start the employment tribunal process

 

Once they then get the employment tribunal notice they then get serious and start negotiating (unless they got a water tight case).

 

Any advice anyone?

[BeauBrummie]

The extension is only to allow the employer time to see if they wish to negotiate or find common ground with you.

 

ACAS will have given a limited extension. Once that time has been exhausted a Certificate is issued purely to confirm that you have followed the process. You are then at liberty to raise the stakes by issuing an ET1.

[sangie5952]

Hi Guys

 

I've been through ACAS early conciliation which was unsuccessful - basically went as follows

 

- Completed early conciliation form online

- Nothing happened for nearly 4 weeks

- Contacted by case handler one day before conciliation was due to end asking for extension as company had only just instructed

solicitors.

- Case handler asked what I wanted as resolution

- Case handler asked for clarification on a point regarding what I wanted as resolution

- Last last days of extension from ACAS advising they'd received a response from respondent confirm they did not want to make an

offer.

 

Hoping someones had experience of this and appreciate nobody has any details of my case. I've read through various sources that this is a normal tactic from solicitors to

 

- Find out what you want

- Then to end early conciliation to see if you actually start the employment tribunal process

 

Once they then get the employment tribunal notice they then get serious and start negotiating (unless they got a water tight case).

 

Any advice anyone?

 

Since conciliation is obligatory now, it isn't a tactic for anyone!

 

I think it would be extremely unwise to rely on the idea that they will start negotiating when they get a tribunal claim, or at any time after that.

 

 

Some employers might.

Others will not.

And whether they have a watertight case rarely has anything to do with that decision.

 

 

In my experience, but this is purely my experience, if the employer is going to make an offer to settle, it is usually close to the tribunal date (i have known plenty of times when it had happened just before the tribunal when everyone is in the building); and is more closely related to the financial risk than to their chances of winning (unless it is a no hope case for the employer

- which is rare).

In other words, if what you want is too much, they may just go with the risk.

 

The fact that they haven't even attempted to conciliate says a lot more to me.

They aren't likely to consider the claim a potential bluff on your part, so I would not expect an early offer, if you get an offer at all.

 

 

Anyone who wants it to go away will offer something, even if the offer is derisory.

There's nothing to lose by making an offer

- it isn't an admission of guilt! And you never know, someone might accept it and save everyone a lot of money and angst.

So it may be more indicative of a longer term battle for you.

 

PS just to correct something that is quite misleading here for anyone else reading this thread.

 

 

Topcat14, has, in any case, incorrectly applied the test for the deadline for tribunal claims.

It is correct that it is three months less a day from the date of the action complained about.

But it is not from the date of the "incident" complained about

- it is from the date of the failed grievance appeal.

 

 

The law requires employees and employers to attempt to use internal processes to resolve a situation, and if the date of the incident were the relevant date, then all an employer would need to do would be to ensure that no grievance process ever completed within three months!

 

 

The grievance process is a continuation of the act complained about.

And the failure to address the grievance in the way someone expects it to be dealt with is the complaint.

That is not to say that a complainant is right, obviously.

 

 

Just that the failure by the employer to satisfy the complainant is the trigger to the tribunal claim, if, indeed, the matter is able to be dealt with by a tribunal.

[becky2585]

Sangie that isn't quite right either!

 

Time limits run from the detriment suffered as a rule in statutory rights type claims, unless the grievance outcome could be said to be discriminatory or a detrimental act, in which case the time limit could also run from the grievance outcome.

 

 

They could be viewed as two separate acts, or a continuation in a series of events, depending on the circumstances, or the grievance may not act to extend time limits at all.

 

 

On that basis, it would be very dangerous to rely on a grievance outcome to extend time limits unless there were sound legal grounds to do so.

 

It was different pre 2009 when the statutory procedures had to be exhausted and would extend the time limits, but that isn't the case now.

[sangie5952]

Well we will have to disagree on that.

By your interpretation, given that employees are required to attempt resolution through internal processes, nobody could ever make a claim if the employer drags their feet on the process.

[becky2585]

How so?

 

The act still took place regardless of whether or not the employer provides an adequate resolution.

 

Employees are not "required" to now address things internally, but it's certainly recommended to avoid a reduction in any compensation awarded for failing to do so.

[sangie5952]

That is a little disingenuous.

The "act" may have taken place, but if the issue is resolved between the employer and the employee, then it is resolved.

Taking it to a tribunal doesn't make it disappear either!

 

We disagree.

Perhaps your experience is different than mine.

But I am stating what is my experience.

Not having an argument about it.

I was not talking about pre-2009.

 

 

I was, and am, talking about now. And this is my current experience.

Perhaps ACAS and the tribunals don't know what they are doing.

But I have to assume that they do.

[Emmzzi]

Out of curiosity, what is your experience?

[sangie5952]

If anyone on an anonymous internet forum is to be believed, long time full-time trade union official.

But then, I seldom believe much of what is claimed on internet sites.

 

 

So all anyone can do is say what their experience or opinion is, and posters must decide whether they want to pay attention or not.

If you want professional advice, go to your union or a lawyer - not an anonymous internet site.

 

Out of curiousity, what is yours? Or anyone elses?

[becky2585]

I'm an employment lawyer.

 

Or to quote one of my favourite comments of Emmzzi over the years, I could also be a whittler of wooden pineapples

[Emmzzi]

Out of curiousity, what is yours? Or anyone elses?

 

HR manager with IR specialism. or, a professional tobogganer. See signature.

[Ganymede]

HR manager with IR specialism. or, a professional tobogganer. See signature.