C Raison v DF Capital Bank Ltd & Ors

Under section 207B(3) of the Employment Rights Act 1996, early conciliation stops the limitation clock only for days which would otherwise count towards the applicable limitation period. It does not add to the end of that period days spent in early conciliation before limitation began to run, including days before the effective date of termination.

The provision prevents claimants being disadvantaged by mandatory conciliation. It does not confer an additional period of limitation where no limitation time was running. Where a represented claimant relies on late filing caused by legal advice, the tribunal must decide as a question of fact whether the advisers' error was itself reasonable. In an uncertain area, it may be reasonable to file by the earliest possible expiry date.

The claimant, formerly the respondent bank's Chief Commercial Officer, brought a claim for automatically unfair dismissal for making protected disclosures. Her employment ended on 17 February 2023. She began ACAS early conciliation before that date and received a certificate on 28 February 2023. She presented her claim on 30 May 2023.

The Employment Tribunal held that only the part of early conciliation after the effective date of termination extended the primary time limit. The claim was therefore three days late. It also held that timely presentation had been reasonably practicable despite the claimant having received legal advice.

On appeal, the central issue was whether section 207B(3) of the Employment Rights Act 1996 excludes the whole early-conciliation period, or only the portion occurring after limitation began.

1. Appeal dismissed. The Employment Tribunal correctly held that the unfair-dismissal complaint was presented three days after expiry of the primary limitation period.
2. Section 207B(3) of the Employment Rights Act 1996 concerns the calculation of the expiry of a time limit. Limitation is ordinarily calculated from the date on which it begins to run. A period before that date does not count towards the calculation in any event.
3. The words providing that the period from the day after Day A to Day B is not to be counted therefore exclude only that part of early conciliation during which limitation would otherwise run. They do not add pre-termination conciliation days to the end of the three-month period. The provision is a stop-the-clock measure, not a mechanism granting a claimant an additional limitation bonus.
4. This construction follows the statutory wording, context and purpose. It is also supported by Revenue and Customs Commissioners v Serra Garau [2017] ICR 1121. The distinction between an entire conciliation period before termination and one which straddles termination is not material: in either case, time cannot be stopped before it has begun to run.
5. The tribunal also applied the correct approach to reasonable practicability under section 111(2)(b). A represented claimant is ordinarily bound by advisers' unreasonable advice, although an adviser's error may itself be reasonable in particular circumstances. Here, notwithstanding uncertainty in first-instance decisions, it was open to the tribunal to find that the reasonable course was to lodge the claim by the earlier possible expiry date. Its conclusion involved neither a legal misdirection nor perversity.

• Employment Appeal Tribunal: Appeal dismissed: [2025] EAT 86.
• Employment Tribunal (Manchester): Held that it lacked jurisdiction over the unfair-dismissal complaint because it was out of time; judgment promulgated on 28 December 2023 and reasons provided on 30 January 2024.