The ability to bring a claim in the employment tribunal is not always straightforward.
Here are some of the key considerations.
Who has the right to claim Unfair Dismissal?
In general, this right is only available to employees that have been dismissed and have been employed for at least two years.
The two years qualifying period does not apply in most cases where the dismissal is for an automatically unfair reason.
Further, there is no minimum service requirement for discrimination and whistleblowing claims. Therefore, employees and workers may still be able to bring claims if they are alleging that their dismissal was discriminatory or because there was a protected disclosure (whistleblowing).
If you have been dismissed, and have less than two years’ service, it would be prudent to take advice to understand if you can get the minimum service requirement.
What needs to be done before you can bring a claim?
- An employee considering making a claim in the employment tribunal must first contact Acas to register the claim for Acas Early Conciliation (EC). Their representative can also do this for them.
- EC must be commenced before the expiry of the relevant time limit:
- The time limit to bring a claim for unfair dismissal is 3 months less one day from the effective date of termination (when the employment ends).
- The time limit to bring a claim for discrimination is 3 months less one day from the discriminatory act. It is often argued that the dismissal itself was a discriminatory act.
- However, section 123(3)(a) of the Equality Act 2010 states that “where an act or acts of discrimination extend over a period (commonly referred to as a “continuing act”), they are treated as having occurred at the end of that period.” Therefore, time does not start to run until the end of the course of discriminatory conduct (if you can establish there was a continuing act).
- The test for a “continuing act” is whether the employer is responsible for “an ongoing situation or a continuing state of affairs” in which the acts of discrimination occurred, as opposed to a series of unconnected or isolated incident.
- When EC is commenced, Acas will try to facilitate a settlement.
- EC is scheduled to last 6 weeks, but can be ended sooner (for example, if Acas determine there is no prospect of settlement being achieved).
- If a Claimant refers the dispute to Acas for EC, there is an automatic extension of time for submitting a claim. Broadly speaking, time stops running when EC starts and begins to run again when EC ends. Acas produce a certificate showing the start and end dates of the EC. If EC is started with less than 1 month left of the original time limit to bring a claim, the time to bring a claim is extended to 1 calendar month from the date EC ends in any event.
- If the Respondent commences EC, the time limit for bringing a claim is not extended.
- When EC ends and Acas produce the EC Certificate, it includes the EC number which is needed when brining a claim in the employment tribunal.
This blog is for information purposes only. Nothing should be relied upon as a substitute for legal advice and nothing written should be construed as legal advice or perceived as creating a lawyer-client relationship.