H M Revenue & Customs v Garau

For proceedings relating to the same matter, the mandatory early-conciliation scheme permits one certificate. Once the prospective claimant has complied with the notification requirement and obtained that certificate, the statutory bar on presenting proceedings is lifted.

A later voluntary contact with ACAS and a further certificate fall outside the mandatory scheme. They do not create a further Day A or Day B and do not modify the limitation period under Employment Rights Act 1996 section 207B or its discrimination counterpart. Voluntary conciliation remains encouraged, but it does not itself stop time running.

The claimant, formerly employed by HMRC, was dismissed on 30 December 2015. He had contacted ACAS before dismissal and received an early-conciliation certificate on 4 November 2015. Shortly before the ordinary three-month limitation period expired, he contacted ACAS again and received a second certificate. He presented claims for unfair dismissal and disability discrimination one month later.

An Employment Judge sitting at Liverpool held that the second certificate stopped the limitation clock and that the claims were in time. HMRC appealed. The central issue was whether ACAS could issue more than one statutory early-conciliation certificate for the same matter and, if so, whether a later certificate affected limitation.

1. Appeal allowed. The Employment Judge erred in holding that the second certificate preserved the claims. The statutory scheme creates one mandatory early-conciliation process before proceedings relating to a matter may be presented.

2. Section 18A of the Employment Tribunals Act 1996 prevents presentation of a claim until the required certificate has been obtained. Once the first certificate has been obtained, that prohibition is lifted. A second notification is voluntary and a second certificate is not a certificate within section 18A(4).

3. The corresponding modification of time limits is the quid pro quo for the mandatory procedure. Under section 207B of the Employment Rights Act 1996, Day A is the mandatory notification and Day B is the mandatory certificate. A voluntary second notification and certificate cannot constitute a further Day A or Day B, and cannot stop time or generate the additional month provided by that section. The same conclusion applied to the discrimination claim under section 140B of the Equality Act 2010.

4. Tanveer v East London Bus and Coach Co Ltd, [2016] ICR D11, concerned time spent in statutory early conciliation while limitation was running. It did not support treating all time spent in any later voluntary conciliation as excluded. The first certificate here could not stop time for unfair dismissal because the limitation period had not begun; the second lay outside the statutory regime.

5. The primary limitation period expired on 29 March 2016. The claims were out of time unless the discrimination claim involved conduct extending over a period, or the tribunal exercised a statutory discretion to extend time. Those outstanding matters were remitted to a different Employment Judge, so that they could be decided with a fresh judicial mind.

• Employment Appeal Tribunal: Allowed HMRC's appeal and substituted a finding that the primary limitation period expired on 29 March 2016. Outstanding limitation issues were remitted to a different Employment Judge.
• Employment Tribunal, Liverpool: Held that the claimant's unfair-dismissal and disability-discrimination claims were in time because a second ACAS early-conciliation certificate stopped the limitation clock.