In sequence

Before lodging a tribunal claim, complainants usually have to engage in early conciliation through Acas. In Luton Borough Council v Haque the Employment Appeal Tribunal (EAT) held that sections 207B(3) and 207B(4) of the Employment Rights Act (ERA) which extend the time for bringing proceedings have to be read in sequence rather than as alternatives.

Relevant law

Section 207B(3) ERA states that “In working out when a time limit set by a relevant provision expires, the period beginning with the day after Day A and ending with Day B is not to be counted”.

Section 207B(4) ERA then states that if “a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period”.

Basic facts

After being summarily dismissed on 20 June 2016, Mr Haque contacted Acas on 22 July (Day A). It issued him with an early conciliation certificate on 22 August (Day B).

On 18 October, Mr Haque brought claims for unfair and wrongful dismissal, as well as direct and indirect race and religion or belief discrimination. The Council said his claims were out of time as sub-sections 207B(3) and (4) ERA were alternatives for calculating time, not sequential.

Tribunal decision

The tribunal, however, agreed with Mr Haque, saying that the normal time limit of three months less one day from 20 June (in other words, 19 September) for bringing his claims had been extended by 31 days under sub-section 207B(3) ERA.

This was because the period beginning with the day after Day A (23 July) and ending with Day B (22 August) should not be counted. As a result, the 31 days from 23 July to 22 August 2016 were discounted, bringing the limitation period to 20 October. As such, his claim was in time.

The Council appealed arguing that the two sub-sections provided for different limitation periods. It said that as the primary limitation period (19 September) fell between Day A and a month after Day B (22 September), then the time limit expired on that date meaning that Mr Haque’s claim was out of time.

EAT decision

The EAT dismissed the appeal, holding that the two sub-sections had to be applied sequentially. As such, section 207B(3) applied in every case as it provided the method for working out when the time limit set by a “relevant provision” expired. By contrast section 207B(4) only applied in the circumstances to which it referred. The time limit in that section was not the original time limit but rather the one revised by section 207B(3).

As the EAT made clear, the whole point of section 207B was to ensure that prospective claimants were not disadvantaged by the time taken to comply with the early conciliation requirement. Sub-section 207B(4) provided a backstop to make sure that, if conciliation failed, a prospective claimant always had at least a month from the end of the early conciliation period in which to bring their claim.