Mrs N Hibberd v The Chief Constable of Avon and Somerset Constabulary: 6009711/2025
REASONS
[1]These written reasons are provided following a request made at the hearing by Mr Pincott on behalf of the Respondent. Background[2]The Claimant was dismissed by the Respondent on 8 November 2024, after a secondment had ended and the Respondent says that it was unable to find another suitable role for her within its organisation. She presented claims primarily for unfair dismissal, disability discrimination and breach of contract.[3]An Employment Judge at a previous hearing formulated the main issue in respect of time limits, to decided at the present hearing, as follows: 1 of 7 The claim form was presented on 20 March 2025. The Claimant commenced the Early Conciliation process with ACAS on 12 December 2024 (Day A). The Early Conciliation Certificate was issued on 23 January 2025 (Day B) (a period of 42 days not including Day A). Accordingly, any act or omission which took place before 10 November 2024 (which allows for any extension under the Early Conciliation provisions) is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint.[4]The judge listed the present preliminary hearing to determine, amongst other things, whether the claim was presented on time.[5]The dates of termination of employment, the dates of Acas Early Conciliation (“EC”), the length of the EC period and the date of presentation of the claim were not in dispute. The earlier judge’s approach and date of “10 November 2024”, as noted above, was not agreed. Relevant law[6]Section 111 of the Employment Rights Act 1996 (ERA 1996) provides as follows, insofar as is relevant:(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (2A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a). …[7]Section 207B ERA 1996 provides as follows, insofar as is relevant: (2) In this section—(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and 2 of 7(b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) 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. …[8]Equivalent time limit provisions apply to claims for breach of contract in the Employment Tribunal.[9]Both representatives said that they were unaware of any binding authority as to the correct approach to be taken when determining how much additional time arises from the application of section 207B(3).[10]Miss Caller referred me to the case of Luton Borough Council v Haque UKEAT/0180/17, a decision of Naomi Ellenbogen KC sitting as a Deputy High Court Judge. The EAT in that appeal was primarily concerned with the operation and effect of s.207B(4), which was not relevant in the present case. Paragraph 9 of the EAT’s decision did, however, consider how section 207B(3) also potentially operated, albeit Mr Pincott said this part of the EAT’s decision was obiter: 9 The primary limitation period for a claim of unfair dismissal under subsection 111(2)(a) of the 1996 Act is three months, beginning with the effective date of termination. Thus, in this case, subject to section 207B, the primary limitation period would have expired on 19 September 2016. Under section 207B(3) of the Act, the period beginning with the day after Day A and ending with Day B (in each case as defined by section 207B(2)) is not to be counted. Here, that period, running from 23 July to 22 August 2016, was 31 days. Adding 31 days to 19 September 2016, the primary limitation period expired on 20 October 2016. The claim form was presented on 18 October 2016, and, accordingly, was presented in time, if section 207B(3) applies.[11]The approach of adding the number of days taken up by the EC period to the original limitation date, as in the extract from the EAT’s judgment above, was also the approach which was reflected in the Practical Law commentary/guidance on the operation of section 207B(3), to which I referred the parties from my own preparation for the present hearing. That commentary stated as follows: Extension under subsection 207B(3) Subsection 207B(3) operates to "stop the clock" during the period in which the parties participate in EC as it provides that "in working out when a time limit expires the period beginning with the day after Day A and ending with Day B is not to be counted". What this means in practice is as follows: 3 of 7 Limitation period has already started before EC commences: the limitation period is extended by adding the number of days between Day A and Day B to the ordinary limitation period. … Examples The ordinary limitation period for C's claim starts on 1 May and expires on 31 July. C telephones Acas on 1 June (Day A) and Acas emails the EC certificate to C on 20 June (Day B). The limitation date to present C's claim is extended by 19 days, so to 19 August. The ordinary limitation period for C's claim starts on 1 April and expires on 30 June. C telephoned Acas on 15 March (Day A). Acas emails the EC certificate to C on 10 April (Day B). Only ten days of the EC period occur on or after the day the ordinary limitation period commenced. The limitation date to present C's claim is therefore extended by ten days, so to 10 July.[12]Miss Caller said during her oral submissions that other legal commentary took a similar approach of adding on the days in the EC period, but that commentary was not before me. Submissions[13]Both parties had provided written submissions and also made short oral submissions which echoed their written argument.[14]The relevant part of Ms Caller’s submissions was as follows: Primary point: The claims are in time by ACAS calculation 5. The Respondent says the claims were one day late. The Claimant says that is wrong because it counts backwards from the date of submission and/or omits Day B. 6. The statutory wording excludes the period beginning with the day after Day A and ending with Day B. Day B is included. 7. Day A was 12 December 2024. Day B was 23 January 2025. The excluded period was therefore 13 December 2024 to 23 January 2025 inclusive, namely 42 days. 8. Applying Haque, those 42 days are added to the ordinary limitation date of 7 February 2025. 9. The extended deadline was 21 March 2025. 10. The ET1 was presented on 20 March 2025. 4 of 7 11. The claims were therefore one day in time.[15]Mr Pincott’s submissions were as follows: 7. While the period not to be counted in this case is a period of 42 days, the statutory requirement is not to add on 42 days (or such other relevant period) to the limitation period under s.111(2)(1), but very specifically not to count the period starting with the day after Day A and ending with Day B. 8. The correct order of calculation is therefore as follows:8.1 Step 1: Counting any initial time from the statutory limitation period prior to the commencement of early conciliation, to be calculated as a period of months.8.2 Step 2: Stopping the clock (not counting) the time from the day after Day A until Day B.8.3 Step 3: Counting any remaining time from the statutory limitation period, to be calculated as a period of months. 9 The Claimant’s calculation proposes that steps 1 and 3 should be taken as a single block, and that step 2 should be replaced by a step which adds time arbitrarily based on the length of time between Day A and Day B, rather than not counting the actual period of conciliation. 10 That is contrary to the clear statutory language, and while those different approaches may not have a significant effect in every case, in some cases, such as this, they will. 11 The correct calculation of limitation in this case is therefore as follows:11.1 Step 1: 8 November 2024 – 12 December 2024 = 1 month 5 days used from the primary limitation period11.2 Step 2: 13 December 2024 – 23 January 2025 = 42 days not counted as part of primary limitation period11.3 Step 3: 24 January 2025 – 18 March 2025 = the remaining 2 months minus 6 days of the primary limitation period (taking account of the usual minus 1 day to ensure a claim is brought “before the end of” 3 months, plus the 5 days used in addition to 1 month at step 1, allowing a total period of 3 month minus 1 day) 5 of 7 12. The cut off date for presentation of the ET1 on the particular facts of this case was therefore 18 March 2025. Conclusion[16]Having considered each party’s submissions, I was satisfied that the common and (relatively) straightforward approach of adding on the days taken up by the EC period, proposed by the Claimant, was in line with the relevant statutory requirements of presenting a claim within the period “before the end of” the threemonths-less-one-day period, as extended by the length of the EC period which “not to be counted”. The alternative approach proposed by Mr Pincott appeared to introduce significant additional complexity and the calculation would also be highly dependent upon the lengths of the months involved in the overall period, which included February in this particular case.[17]Accordingly, ensuring that the 42 days was not to be counted, I concluded that the correct approach in the present case was as follows: EDT: 8.11.2024 Original time limit expiry: 7.2.2025 (section 111(2)(a)) EC Day A: 12.12.2024 EC Day B: 23.1.2025 EC extension: 42 days (section 207B(2)) Extended time limit so as not to count the 42 days (7.2.2025 + 42 days): 21.3.2025 (section 207B(3)) Date ET1 presented: 20.3.2025[18]The claim was therefore presented in time with reference to the effective date of termination.