Employee loses out through misunderstanding time limits for multiple respondents
Helen Crossland
The recent case of Beadle v Addaction tested a key area which the new regulations governing early conciliation fail to address: how are time limits for bringing an employment tribunal claim affected when the claimant intends to bring a claim against multiple potential respondents, with whom early conciliation starts and ends at different times?
Facts
The case concerned a Tupe transfer in April 2014. After the transfer the claimant, Beadle, wished to pursue complaints against both his outgoing and incoming employer. Early conciliation was introduced that same month, and Beadle understood he would need to go through this process before he could lodge a claim.
He began early conciliation, initially with Addaction (the transferee) on 14 May 2014, and this conciliation process concluded on 13 June 2014. Early conciliation “stops the clock” on the normal time limit for bringing a claim, and in this case the limitation date for the claim against Addaction was extended to 12 July 2014. Beadle began early conciliation against the potential second respondent, the transferor, on 19 June 2014.
On 14 July 2014, two days after the time limit for the claim against Addaction, and while early conciliation with the potential second respondent was still ongoing, Beadle tried to lodge an ET1 (employment tribunal claim form) online against both Addaction and the potential second respondent. But the claim was rejected due to there being no early conciliation reference number for the claim against the transferor employer.
Some weeks later, after early conciliation had also concluded with the potential second respondent, Beadle lodged an ET1 against Addaction only, which was accepted by the tribunal. Addaction asked for the claim to be struck out on the basis it was out of time.
Tribunal
The employment tribunal found in favour of Addaction. Although the early conciliation with the proposed second respondent extended the time limit for a claim against that employer, it did not extend the time limit for a claim against Addaction, with which early conciliation had ended.
The tribunal held there was no reason why it had not been practicable for Beadle to file his claim against Addaction in time, and his failure to do so (owing to his wrongly held belief his ET1 would not be accepted until early conciliation had concluded with both respondents) did not provide an excuse for this. The tribunal concluded he ought to have lodged an ET1 by 12 July 2014 against Addaction only, applying later to join that claim with any separate proceedings brought against the potential second respondent if necessary.
Comment
The case provides clear direction for those facing the above conundrum and clarifies that where there are anticipated multiple respondents, the claim must be filed at the earliest of the time limits for any of the proposed parties. Alternatively, a claim should be lodged against the respondent(s) for which there is an early conciliation reference number, with a subsequent claim against any parties playing catch up. Claimants can then ask for permission from the tribunal to join the claims together.
Where employers consider a claim out of time, the same principles apply as they would have pre-early conciliation – a company will need to lodge its response to preserve its position as a party to the proceedings. Employers should then ask for a preliminary tribunal hearing if they wish to challenge whether the claim should have been accepted.
While early conciliation brings added complications into the dispute resolution mix, not least because of the shortcomings in the regulations’ convoluted “stop the clock” system, the absence of a solid excuse for why it was not reasonably practicable for a claimant to lodge a claim in time will still render a tribunal as unlikely as it was before to accept an otherwise out-of-time claim. As demonstrated in this case, an alleged misconception of the new regulations is unlikely to assist a claimant in this regard.
Helen Crossland is a partner at law firm Hamlins. The firm acted for the respondent in Beadle v Addaction.
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For a quick guide to time limits for presenting unfair dismissal claims, go to model documents (http://www.cipd.co.uk/hr-inform/templates-and-tools/model-documents-policies/termination/dismissal#tcm44-104507_44-104507 )