How much time do I have? Deadlines and timescales around Employment Tribunals
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If you’re thinking about making a claim in the Employment Tribunal, you’ll need to move quickly. This is because there are strict time limits on Employment Tribunal claims.
- For most claims, you have three months less one day from the key act to speak to ACAS and start the Employment Tribunal process. For redundancy and equal pay claims, you have six months less one day.
- The grievance procedure does not affect these timescales, and judges have only limited discretion to extend your time limit.
- From start to finish, your Employment Tribunal claim could take several months, but it would not be uncommon for the process to take a year, or longer.
- You need to have two years’ continuous employment for some claims.
In this article, we’ll break down some of the key time requirements for you so that you understand what you need to do, when.
How long do I have to put in an ET1?
Before you can put in your ET1 - the legal form which you submit to the Tribunal to start your claim - you need to contact ACAS and go through a process called ACAS Early Conciliation.
Early Conciliation is when ACAS talks to both you and the Respondent (usually your employer) about your dispute. It gives you the chance to come to an agreement without having to go to an Employment Tribunal. In 2020, 14% of cases ended in an ACAS COT3 settlement, and 56% did not progress to an Employment Tribunal claim after the initial ACAS notification.
You need to contact ACAS by a certain date.
- For most employment law claims, this is by 3 months less 1 day.
- For statutory redundancy pay or equal pay claims, the claim must be made within 6 months less one day.
This means that, for example, if you were unfairly dismissed on 1 May, you would need to contact ACAS to start Early Conciliation by the end of the day on 31 July.
The Early Conciliation process takes place over a maximum period of 6 weeks. If you don’t manage to come to an agreement at the end of that period, then ACAS will issue you with an Early Conciliation Certificate. If either you or your employer do not want to negotiate, then the certificate can be issued before the end of the 6 weeks.
When you have received your Early Conciliation Certificate, you’ll then have a further period of time to put in your ET1. This will be at least a month from the date that is given on your Certificate, but it does depend on the date of the incident(s) and when you started and finished Early Conciliation. Law firm Lewis Silkin offer a downloadable calculator to check the exact deadlines for your case.
You can use the Valla platform to keep track of important dates and store any communications that you have during Early Conciliation. Sign up for your free account.
When does this timescale start?
Usually the time limits will start to run from the date when the ‘key act’ happened. This key date varies depending on what kind of claim you are putting in.
For unfair or constructive dismissal cases, the time limit (three months less one day) starts to run from the last day of your employment - this might be the same day that you were dismissed or you quit, or might be later if you worked notice.
Unlawful deduction of wages
If you have been underpaid, you normally have three months minus one day from the date of the payday when you were last underpaid. If you weren’t paid at all, it’s the date when you should have been paid.
Your claim can then include underpayments going back a maximum of two years.
Unlawful deduction of wages covers things like:
- sick pay
If you’re claiming statutory redundancy pay, or in an equal pay case, you have six months minus one day from the date of termination of employment.
Discrimination or whistleblowing
In a discrimination or whistleblowing detriment case, it can be more complicated to figure out when the timescale starts. Broadly, the rules are:
A single act
If there has only been one unlawful act, the time limit runs from the date of that act.
Multiple separate acts
If there has been more than one unlawful act, the time limit runs from the date of each act separately. This means it’s possible for you to be out of time for some of the earlier acts, but in time for later ones.
You might be able to argue that a series of different incidents actually amounted to one continuing act. In this case, the time limit still starts from the date of the most recent act, but the Tribunal might be able to consider earlier acts as part of the same issue. This can be a difficult point to figure out, and you might have to go into some detail arguing this point as part of your Employment Tribunal case.
If you’re not sure what legal claims you might be able to make, use our Legal Research section in the Valla platform to do some research and take notes. Sign up for your free account.
Submitting a grievance
You can be penalised if you don’t raise a grievance before making an Employment Tribunal claim, in that your compensation can be reduced by up to 25%, under the ACAS Code of Practice on Disciplinary and Grievance Procedures.
But it’s important to know that if you put in a grievance, this doesn’t ‘stop the clock’ in terms of the three or six month (less one day) time limits. You need to make sure that you don’t run out of time while going through the grievance process.
It will look better if you have managed to complete the grievance process, so you should always put in a formal grievance as soon as possible after the issue arises.
However, if your grievance is still being investigated, you can contact ACAS before the process is finished so that you don’t miss the deadline. The Tribunal might ask why you did not wait for the grievance to be concluded, but they will probably understand if you simply say that the process was taking a long time and you wanted to make sure you weren’t out of time.
It’s not necessary to raise a grievance in every case. For example, your compensation might not be reduced if you can show that the employment relationship had broken down beyond repair and that putting in a grievance would have made no difference.
What if I miss the deadline?
If you’ve been sick, or have missed the deadline for another good reason, then it’s possible that a judge might agree to extend the time limit for you, but it’s important not to rely on this.
- For a discrimination case, the judge needs to decide if it was “just and equitable” for you to meet the deadline.
- For an unfair dismissal case, they need to rule as to whether it was “reasonably practicable”.
The “reasonably practicable” test is more difficult to satisfy and this might mean that part of your case is allowed but part is considered to be out of time. Law firm VWV have a good explanation of a case where an out-of-time discrimination claim was allowed to proceed, but the unfair dismissal claim was not.
If you are in this situation, though, be aware that there is no guarantee that the time limit will be extended. The Respondent may see this is a good opportunity to try to get your claim struck out.
Sometimes you need to have a separate Preliminary Hearing to deal with this issue.
If you have missed the deadline to put in a claim, it’s worth keeping an eye out for future behaviour and keeping a good record of what’s going on. That way, you will be prepared if you need to make a claim in the future. If employers get away with unfair behaviour once, it’s likely they might do the same thing again.
How long do I need to have worked for my employer?
For some Employment Tribunal claims, you have to have worked for your employer for a certain amount of time - called your “length of service” or “continuous service”.
For most claims for ‘ordinary’ unfair dismissal, constructive dismissal, or redundancy pay, you need to have at least 103 weeks’ continuous service - which is one week short of 2 years.
However for many other claims, including discrimination, unlawful deduction from wages and some kinds of automatic unfair dismissal, this length of service requirement does not apply.
Continuous service means that you’ve worked for the same employer for a set length of time (or your employment has been directly transferred from a previous employer).
Your length of service still applies if:
- you have worked different jobs for the same employer (with no break in contracts)
- your contract was transferred, for example because your employer was bought over
- you are affected by a temporary lay-off
If you’re not sure whether you have enough length of service to put in a claim, check your start date (this should be in your contract of employment) and consider any breaks you have had in your employment, and whether these will break continuity. You can use the Valla platform to save any relevant documents to help you establish this. Sign up for your free account.
What happens after I submit my ET1?
Once you have got your Early Conciliation Certificate, and you have put in your ET1, the Tribunal will contact your employer, giving them 28 days to respond to your ET1 - they submit a form called the ET3.
Once the Tribunal has received the ET3, they will send it on to you - this means you will probably be waiting over a month before you get to read the ET3.
After that, you’ll normally be invited to a Preliminary Hearing, where deadlines for the rest of the case will be decided, like when you need to hand your documents over to the other side and when you need to do your witness statements. In some straightforward cases, there will be no Preliminary Hearing.
How long does an Employment Tribunal take?
You can expect your case, from start to finish, to take anything from a few months to over a year.
The Final Hearing itself will take anything from an hour or two to a few days (it could even take a few weeks, although this would be unusual).
What should I do next?
If you think you might want to make a claim to the Employment Tribunal, the very first thing you should do is to check if your claim is in time. If it is, then Valla can help you store any communications with ACAS and others, share your case with an advisor and draft your ET1. Sign up for your free account.
Support the reform
The Law Commission, which is an independent body responsible for recommending reform in England and Wales, has recommended increasing the time limit for all types of Employment Tribunal claims to 6 months and the Westminster government are reviewing these recommendations, although any changes are likely to take some time.
If the Westminster government accept these recommendations for England and Wales, it’s very likely that the changes would be adopted in Scotland, too.
The Law Commission has also recommended harmonising the discretion judges have to extend time, rather than the current system of having two kinds of legal test.
If the Law Commission’s recommendations are implemented, it would be a positive step towards helping more people access justice. The #GiveMeSix campaign is supporting this time limit extension for pregnancy and maternity cases in particular. Sign the petition on Change.org.