If you're worried about the time limits for constructive dismissal, don't stress; the deadline can be pushed back, or there might be a mistake in figuring out the EDT.
In England, the constructive dismissal time limit to an employment tribunal is generally three months from the effective date of termination [EDT] of employment. This is stipulated under section 111 of the Employment Rights Act 1996 (ERA 1996). However, it can be extended with ACAS or at the discretion of Employment Tribunal if you fulfil the ’’not reasonably practicable TEST’’
At the conclusion of this article, we offer some of the most common case scenarios. If you remain uncertain, you should consult legal advice elsewhere or join us on the forum, where we can calculate your time limit at no cost.
In England and Wales, a constructive dismissal claim must generally be presented to the employment tribunal within three months less one day from the effective date of termination (EDT). The EDT in a constructive dismissal case is the date on which you resigned in response to the employer's conduct, not the date you gave your notice in ‘’Cann v BUPA Care Homes (BNH) Ltd’’ or ‘’Spillett v Tesco Stores Ltd’’
However, the time limit for presenting a claim can be extended during the ACAS Early Conciliation (EC) process "stop the clock". The period for making a complaint is extended to facilitate early conciliation, and the time limit is paused during the conciliation period. Therefore, if you have been in ACAS for the full six weeks, your time extends by these six weeks minus 1 day, plus one additional month. But if you registered with ACAS and during the EC process the original three months minus one day ended, or will end within one calendar month after the following day your ACAS certificate is issued, you gain only one additional calendar month to present the case to the Employment Tribunal, and the time spent in ACAS is not added on top of that one calendar month, as we also explained below.
Discretionary time limit extension
Don't panic - if you present your claim late in all circumstances, the Employment Tribunal has the discretion to extend the time limit if it was "not reasonably practicable" for the claim to be presented within the primary three-month period or with ACAS extensions. The Employment Tribunal will run a test which has two limbs: you must first show that it was not reasonably practicable to present the claim within the time limit, and secondly, that the claim was presented within a reasonable period thereafter. This is a stringent test, and the tribunal will consider practical hurdles faced by you rather than subjective difficulties like the Christmas period.
In the case of MARKS & SPENCER plc (appellants) v. WILLIAMS-RYAN (respondent) - [2005] IRLR 562, it was established that the tribunal must be satisfied that it was not reasonably practicable for the complaint to be presented within the three-month period and that the claim was presented as soon as reasonably practicable thereafter Marks & Spencer plc v Williams-Ryan. The tribunal's discretion to extend time does not apply to claims that have not yet been lodged. Here you will find a well-founded case of Mr. Patrick Brophy > > >
In summary - the primary time limit for a constructive dismissal claim is three months from the EDT, extendable by the period of ACAS Early Conciliation. If the claim is late, the tribunal may extend the time limit if it was not reasonably practicable to present the claim within the original period and if the claim was presented within a reasonable time thereafter.
Useful example and explanation of "stop the clock":
Mr. Smith, the employee, filed for constructive dismissal against his employer due to the employer's behavior. He submitted his resignation on 15 September 2024, and his last day of employment was upon the expiration of his sick note on 22 September 2024. What is the Effective Date of Termination (EDT) and the deadline for submitting the case to the Employment Tribunal?
The Effective Date of Termination (EDT) in this case is 22 September 2024, which is the last day of the employee's sick note and the last day of employment. This will be the case in all similar circumstances when the date of filing the notice is different from the last day of employment; the EDT is the last day of employment.
Further in the case of Mr. Smith
Under the Employment Rights Act 1996, a claim of constructive dismissal must be filed with the Employment Tribunal within three months minus one day from the EDT. Consequently, the deadline for submitting the case to the Employment Tribunal would be 21 December 2024 Joshi v Manchester City Council, Employment Rights Act 1996 (1996 c 18)
This may sound pretty simple, however, Mr.Smith needs to register with ACAS before presenting the claim to Employment Tribunal. And this is when the simple calculation which is now set on 21 December 2024 may get complicated.
The registration with ACAS is considered as a grievance. According to the Acas Code, it is essential for an employee to raise a grievance with the employer before resorting to a tribunal claim for constructive dismissal. This is because the grievance procedure is a critical part of addressing the conduct of the employer that the employee alleges caused them to resign.
In the case of Hall v South Kent College, it was highlighted that the obligation to lodge a grievance generally applies even in cases of constructive dismissal. The grievance should address the employer's conduct that led to the employee's resignation Hall v South Kent College. Additionally, in Martin v Class Security Installations Ltd, it was established that an employee's complaint, if made in a manner that constitutes a statutory grievance, is sufficient for the tribunal to have jurisdiction over a constructive dismissal claim Martin v Class Security Installations Ltd.
Furthermore
The grievance with ACAS must include specifics of the Employer's alleged misconduct. You shouldn't register unless you are willing to conciliate.
You must indicate their willingness to engage in early conciliation with ACAS in the case of constructive dismissal. The early conciliation (EC) requirement mandates that a prospective claimant must contact ACAS with certain information before submitting a claim to the employment tribunal. This requirement applies to nearly all types of claims within the tribunal's jurisdiction, including constructive dismissal.
Once you signed up with ACAS
Rest assured, the statutory time limit of three months minus one day for constructive dismissal claims is suspended during Early Conciliation, as below:
The time limit for presenting an unfair dismissal claim to the employment tribunal shall be extended by the duration of the Early Conciliation (EC) period, which begins the day after the employee contacts ACAS (Day A) and ends on the day the employee receives the EC certificate (Day B).
This extension is applicable only if the original time limit does not expire during the EC period or within one month after Day B.
If the original time limit would expire during the period beginning with Day A and ending one month after Day B, the time limit shall instead expire at the end of that period, which is one month after Day B.
In this case Mr.Smith was dismissed on 22 September 2024. His statutory time limit ends within three months minus one day which is 21 December 2024. If Mr.Smith registered with ACAS on 23 September/ 2024 the time A starts on 24 of September 2024. Let’s say the ACAS EC ended four week later on 22 October 2024.
When Mr. Smith registered with ACAS on 23 September 2024, Day A would be 24 September 2024, and the time limit would be paused from this date until the issuance of the early conciliation (EC) certificate. If the EC period ended four weeks later on 22 October 2024, Day B would be 22 October 2024. The time limit is extended by the period from Day A to Day B, which is 29 days, plus an additional month if the original time limit would have expired within one month after Day B.
Therefore, the original time limit of 21 December 2024 would be extended by 29 days, resulting in a new deadline of 19 January 2025. Since this new deadline falls within one month after Day B, the final deadline for Mr. Smith to present his claim would be 22 January 2025. However, it is advisable for Mr. Smith not to wait until the last possible day to file his claim to avoid any potential technical issues with the Employment Tribunal website.
The same principle would be used if the ACAS EC ended a week later 29 October 2024. In this case 5 weeks would be added moving the time limit to 28 of January 2025. But if the ACAS EC ended on 21 of Novenber 2024 this would mean that time B starts on 22 of November 2024 which is less then one calender months to the original time limit 21 December 2024. In this case not full time spent in ACAS is added but only one additional calender months which makes the time limit be moved to 20 of January 2025.
Understanding the "stop the clock" provisions is crucial. In practical terms, if the EC certificate is issued and the original statutory time limit ends one month and one day later, the time spent in EC is not included in the overall time limit, and only one extra calendar month is granted. On the other hand, if the EC certificate is issued and the original time limit does not end one calendar month and one day later, the time limit is extended by the number of days between time A and time B.
Important Notice
"Employment Law Advice for People" are committed to providing valuable and informative content on employment law through our blog posts. However, it is important to note that the information available on our website is intended for general informational purposes only and does not constitute legal advice.
Every case is unique, and the application of legal principles can vary significantly based on the specific facts and circumstances involved. Therefore, we strongly advise our readers not to rely solely on the information provided on our blog. Instead, we recommend that you become a member of our website so that we can offer you tailored advice suited to your particular situation. Alternatively, you should seek independent legal advice from a qualified professional to confirm your legal position.
In accordance with the Consumer Rights Act 2015, we wish to make it clear that we exclude liability for any misstatements or issues related to the use of our website. We also limit our liability for any losses arising from or in connection with the operation of the website. While we strive to ensure the accuracy and reliability of the information presented, we cannot guarantee that the content is free from errors or omissions.
By using our website, you acknowledge and agree to these terms. If you have any questions or require further clarification, please do not hesitate to contact us.
Commentaires