Q: I thought I followed correct procedures when dismissing an employee; however the disgruntled individual has threatened to take me to an employment tribunal. Still, it has been eight weeks since the dismissal and I have yet to receive official notification. How long does the employee have to claim unfair dismissal and is there anything I can do in the meantime to enforce my case?
A: In the majority of cases, employees have three months within which to bring a claim to an employment tribunal. This is counted either from the date of dismissal in a claim relating to the dismissal, or alternatively, from the date of the act complained of. For example, if the employee claims that he was discriminated against, the claim must be made within three months of the alleged act of discrimination. Employment tribunals have the power to extend the usual time limits in certain circumstances.
Therefore, your employee still has time in which to make a claim, and you will be officially notified that the claim has been made by receiving a letter from the employment tribunal, asking you to prepare your response.
However, a change to the law in 2014 altered the landscape of bringing claims to employment tribunal and can have an impact on the length of time available for an employee to bring a claim.
Employees are required to comply with the early conciliation process before making a claim. Employees must contact the Advisory, Conciliation and Arbitration Service (Acas) to register their intent to claim. This is so that Acas can attempt to settle the dispute before it becomes an employment tribunal claim. An Acas representative will contact the employee in order to ascertain whether they want to enter into conciliation. It is not mandatory that the employee agrees to try to conciliate the dispute; just that they register their intention.
Once the employee contacts Acas, the three-month time limit is paused, and will start again once the conciliation process is concluded. The length of the pause will depend on whether the employee wishes to try to conciliate the claim; and if they do – at which point Acas will contact the employer – and whether the employer wishes to take part in conciliation. The maximum amount of time allotted to conciliation is six weeks. In some circumstances a further month can be added to the time limit. The result of this means that the time limit for making a claim can, in effect, stretch to almost six months. However, if it were to take this long, it is likely that you would have been asked by Acas during this period whether you would like to participate in early conciliation, and therefore you would be aware of the possibility of a claim.
You can best prepare for any potential claim by ensuring that a good audit trail is in place so that you have evidence to rebut any allegations.
Peter Done is managing director of Peninsula
