13 September 2019 #Employment
In the recent case of Pearce v Merrill Lynch, the EAT ruled that there would be no month’s grace period for ACAS Early Conciliation if the Claimant contacts ACAS after the primary 3-month time limit expires.
The Claimant brought claims outside of the 3-month time limit for detriments arising from making protected disclosures.
Due to illness, he did not take legal advice until the time limit to bring his claim had expired. Further, his solicitors then took 16 days to initiate the ACAS early conciliation process which was also out of time.
The claim was then eventually brought a month after the ACAS early conciliation process had concluded. The tribunal inferred that the Claimant was mistakenly advised that the early conciliation process would allow for a 1-month extension of time. However, the tribunal confirmed that this extension was only applicable to claims where ACAS is contacted within the 3-month time limit in the first place.
The tribunal held that although it had not been reasonably practicable for the Claimant to have put the claim in on time, he failed to present his claim within a reasonable time after the time limit had expired. As well as this, the Claimant did not explain the reason for the delay in contacting ACAS, nor the delay in bringing the claim after the early conciliation process concluded. This was left for the tribunal to infer, as explained above. Due to this, the claim was dismissed for being out of time.
The case provides a insight to how the tribunal deals with claims brought out of time, crucially showing that if a Claimant fails to provide an explanation for the delay and the delay is extensive, the tribunal will likely find the delay unreasonable, even where specific facts exists (such as illness).
The case also clarifies that the normal 1-month extension of time usually afforded by the ACAS early conciliation process will not apply when ACAS is contacted outside of the 3-month time limit in the first place.