20 March 2017

Following the introduction of early conciliation, the rules regarding the time limit for lodging applicable claims changed. This usually means the period of time during which early conciliation applies would not count towards the statutory limitation period, with an appropriate extension given. This is not a straightforward area of the law but a critical area given the consequences of lodging a claim outwith the statutory time limit.

In a Glasgow Employment Tribunal case, Fergusson v Combat Stress, the Claimant had in fact commenced early conciliation before she was dismissed. The question was therefore whether the time spent during early conciliation prior to the dismissal was relevant when calculating the time limit for lodging the claim. The Employment Judge had found 2 English Tribunal judgements which supported the analysis that all time spent during early conciliation was relevant.

In a carefully reasoned judgment the Vice President of the Scottish Employment Tribunal Service disagrees with the position. She found that statutory wording was a “stop the clock” provision. She found that the clock could not be stopped if it had not yet started and so it was only days during the early conciliation period which fell within the normal time limit for bringing the relevant claim that should be added.

While this sounds like an esoteric issue, the rules for calculating the time limits for lodging claims are of the utmost importance and there are clear concerns that we have a divergence of Employment Tribunal authority in England and Scotland. Technically the judgment of one Employment Judge does not bind another Employment Judge but until we have a decision from the appeal courts, there will continue to be uncertainty.

The Judge in the above case while finding that the case was outwith the statutory time limit, did allow the claim to proceed, given the uncertainty in the law.

This case is a timely reminder of the need to consider the statutory wording and Parliament’s intention and to avoid making assumptions as to the position. Employment law continues to change at a fast pace, as the Employment Judge noted, underlining the need for expert advice when managing these issues.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.