Second Early Conciliation Certificate Did Not Extend Time

The Employment Appeal Tribunal (EAT) recently ruled that an Employment Tribunal (ET) claim brought nearly three months after the issuing of an early conciliation certificate was out of time, notwithstanding the fact that a second early conciliation certificate had subsequently been issued (Smith v The Restaurant Group (UK) Ltd).

A woman had been employed as an assistant manager at a restaurant until her employment was terminated at the end of her probationary period. After an early conciliation certificate had been issued, a second early conciliation process led to the issuing of another certificate 54 days after the first one. She brought an ET claim alleging disability discrimination and unauthorised deduction from wages.

It was common ground that her claim had been brought 54 days late if the first certificate fell to be relied upon, but was in time if the second certificate fell to be relied upon. At a preliminary hearing, the ET held that she was a disabled person within the meaning of Section 6 of the Equality Act 2010 but concluded that, as the first certificate was valid, her claim was time barred. She appealed the latter decision to the EAT.

The EAT noted previous decisions of the EAT that the issuing of a second certificate did not extend the time limit for bringing a claim. Only one certificate was required and references in the Act and the Employment Rights Act 1996 to 'the certificate issued' referred to the mandatory certificate required before an ET claim can be brought, and not to a purely voluntary second certificate. The woman's claim had thus been brought out of time.

The woman also appealed against the ET's decision not to extend time and allow her claim to proceed. However, the EAT found that, having regard to the factors taken into account by the ET, it could not be said that it had reached a conclusion it was not entitled to reach. The woman's appeal was dismissed.