Luton Borough Council v Haque

The early-conciliation extensions to Employment Tribunal limitation periods operate sequentially. The "stop the clock" calculation first excludes the period from the day after ACAS is contacted until the early-conciliation certificate is received. The minimum one-month extension then applies if the time limit, as so calculated, would otherwise expire during the statutory protected period.

There is one limitation period determined by the combined operation of the underlying limitation provision and the conciliation extension provisions. The latter provision does not create an alternative period which overrides the former. This construction gives effect to Parliament’s purpose that prospective claimants should not be disadvantaged by time spent complying with early conciliation under the Employment Rights Act 1996.

The claimant was summarily dismissed on 20 June 2016. He contacted ACAS on 22 July 2016, received an early-conciliation certificate on 22 August 2016, and presented claims for unfair dismissal, wrongful dismissal, and race and religion or belief discrimination on 18 October 2016.

At a preliminary hearing, the Watford Employment Tribunal held that all claims had been presented in time. The employer appealed, contending that the extension under section 207B(4) of the Employment Rights Act 1996 was an alternative and overriding limitation period. The central issue was whether section 207B(4) applies to the unmodified primary limitation period or to the period first modified by section 207B(3).

1. Appeal dismissed. The Employment Tribunal correctly held that the claims were presented in time. They were to proceed to a full hearing.

2. Section 207B(3) of the Employment Rights Act 1996 applies in every case in which the conciliation extension is engaged. It prescribes how the expiry of the relevant limitation period is calculated: the specified early-conciliation period is excluded.

3. Section 207B(4) applies only where the limitation period, calculated under section 207B(3), would expire between Day A and one month after Day B. It then makes a further extension. The reference to a period not extended by that subsection does not disapply section 207B(3).

4. Section 111(2)(a) is expressly subject to the following provisions of section 111, and section 111(2A) applies section 207B for its purposes. There is therefore no separate “original” limitation period. There is one time limit, determined by the combined operation of sections 111 and 207B.

5. The sequential construction accords with the statutory purpose. It prevents a prospective claimant being disadvantaged by the time spent in early conciliation and ensures at least one month after conciliation where section 207B(4) is engaged. It does not undermine the policy of short limitation periods.

6. There was no ambiguity or absurdity justifying recourse to parliamentary materials under [1993] AC 593. In any event, the cited materials supported, rather than contradicted, the sequential construction. The contention that the contrary construction risked a breach of article 6 was rejected.

• Employment Appeal Tribunal Dismissed the employer’s appeal and affirmed that the claims were in time.
• Employment Tribunal, Watford At a preliminary hearing, held in a judgment sent on 15 April 2017 that the claims had been presented in time.