Employment Rights Update

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Easter is often associated with little things, like chicks, lambs and mini eggs. So it seems fitting that our monthly update should cover a little more satellite litigation on ACAS Early Conciliation and a little compensation for failing to grant the right of accompaniment.

HM Revenue and Customs v Garau

Mr Garau was an administrative assistant, formerly employed by HMRC.  He’d been on long-term sickness absence and on 1 October 2015, he was given notice of termination of his employment by HMRC.  The notice was to expire on 30 December 2015.

On 12 October 2015, Mr Garau contacted ACAS for the first time, using the mandatory early conciliation procedure.  On 4 November 2015, ACAS issued an early conciliation certificate.  On 30 December 2015, the Claimant’s employment came to an end on expiry of his notice period.

Nearly, but not quite, three months later, on 28 March 2016, he contacted ACAS a second time, lodging a further ACAS early conciliation form.  The next day, 29 March 2016, was the day on which, subject to the operation of the early conciliation regime, the primary three month limitation period would have expired.  On 25 April 2016 ACAS issued a second early conciliation certificate.  One calendar month later, on 25 May 2016, the Claimant presented his claim for disability discrimination and unfair dismissal, seeking to rely on the extension of time granted by submitting his second ACAS early conciliation form on 28 March.

The issue arose whether the claims, or either of them, were in time or out of time.

The Employment Tribunal found that the claims were in time – submission of the second ACAS early conciliation form ‘stopped the clock’ and the extension of time to lodge the claim in the Tribunal therefore applied.

The Employment Appeal Tribunal disagreed.

The EAT held that the early conciliation provisions in the Employment Rights Act 1996 do not allow for more than one EC certificate per ‘matter’ to be issued by ACAS. If more than one such certificate is issued, a second or subsequent certificate is outside the statutory scheme and has no impact on the limitation period. Only one certificate is required in respect of any ‘matter’ to which proceedings relate. Mr Garau had already lodged his ACAS early conciliation form for claims of unfair dismissal and disability discrimination.

On that basis, a voluntary second certificate could not trigger the extension of time. The limitation clock could not stop under the first certificate because the clock by then had not even started and the second voluntary certificate was not valid. Therefore the employment judge should have decided that the three-month primary time limit expired on 29 March 2016, and that the claims were presented out of time (unless time could be extended in the exercise of the tribunal’s usual discretion).

This case confirms the view taken by two different employment judges in Fergusson v Combat Stress ET Case No.4105592/16 and Ullah v London Borough of Hounslow ET Case No.2302599/15 that the extension of time under the EC provisions does not apply to time spent in conciliation before the date of termination – i.e. the extra month is not simply added on to the time limit. The extension of time is only available in so far as early conciliation takes place during the primary limitation period.  And you should only EC the matter once.

Gnahoua v Abellio London Limited

Mr Gnahoua was a bus driver and was captured on CCTV looking at his iPad whilst the bus was moving. Disciplinary proceedings were brought against him and he was dismissed for gross misconduct.

He was represented at his disciplinary hearing by a Unite official. The decision was taken to dismiss him.

Mr Gnahoua appealed and informed the company that he wished to be accompanied by two brothers who had formed the PTSC union, of which the claimant had become a member. The company had a policy of not allowing these brothers to represent individuals in disciplinary or grievance meetings.  The company was happy for someone else from the PTSC union to represent him but not either of these two individuals. It alleged that these brothers were previously guilty of threatening behaviour towards members of staff and of dishonesty, which was denied by them.

The company relied on a history of problems with one of the brothers, who had previously been dismissed for “harassment and intimidation” of another member of staff, a shop steward with Unite. An employment tribunal claim was pursued, the individual being represented by his brother. That claim was struck out after the brothers were accused of falsifying the date on a witness statement.

The PTSC union maintained that Mr Gnahoua was entitled to be accompanied by a fellow worker or trade union official of his choice. He therefore attended the appeal hearing without representation. The decision to dismiss was upheld. Mr Gnahoua pursued a claim for being denied the right to be accompanied contrary to section 10 of the Employment Relations Act 1999.

The employment tribunal accepted that technically the company had breached the claimant’s right to be accompanied. Previous case law (Toal and another v GB Oils Ltd and Roberts v GB Oils Ltd) has made it clear that, as long as the companion meets the statutory definition, the choice of companion should be the employee’s. There was therefore a breach of the right to be accompanied.

However, the employment tribunal awarded compensation of just £2 because it was not satisfied that Mr Gnahoua had suffered any loss or detriment as a result of the refusal and the employer had “strong grounds” to interfere with the choice of companion.

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