Constructive dismissal claim thrown out after ACAS delay: the risk of waiting for union help
A mental health worker's unfair dismissal and discrimination claims were dismissed as out of time after he waited for union assistance before presenting his claim. The tribunal found he could have acted sooner.
2 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant resigned on 15 April 2022 and his employment ended on 10 June 2022.
- He presented his claim to the tribunal on 30 December 2022.
- The first ACAS certificate was issued on 22 September 2022.
- The claimant sought union assistance but was ultimately not provided with legal representation.
- The tribunal found it was reasonably practicable for the claimant to have presented his Employment Rights Act complaints by 22 October 2022.
- The tribunal declined to extend time for the Equality Act complaints as it was not just and equitable.
Timeline
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First allegation by student nurse Sian
A student nurse made an allegation against the claimant, leading to disciplinary proceedings.
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Claimant resigned
The claimant resigned in reaction to disciplinary proceedings that resulted in a first written warning.
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Employment ended
The claimant's employment with the respondent ended following his resignation.
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Appeal outcome letter dated
The appeal outcome letter was dated 20 July 2022 and received by the claimant on 22 July 2022.
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First ACAS conciliation started
The claimant notified ACAS of a potential dispute, obtaining a first certificate (R207654/22/04).
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Claimant asked ACAS to pause conciliation
The claimant requested ACAS to put early conciliation on hold while he pursued union assistance.
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First ACAS certificate issued
ACAS issued the first certificate, advising the claimant of the one-month time limit to submit a claim.
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Second ACAS conciliation started
The claimant sought conciliation again, obtaining a second certificate issued on 1 December 2022.
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Claim presented to tribunal
The claimant presented his claim form to the employment tribunal.
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First preliminary hearing
A preliminary hearing was held to determine time limit issues and other matters.
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Judgment given
The tribunal dismissed all claims as out of time.
The legal issue
Whether the claimant's complaints were presented within the statutory time limits, and if not, whether the tribunal should extend time under the Employment Rights Act 1996 (section 111) and the Equality Act 2010 (section 123).
The outcome
The tribunal dismissed all claims as out of time.
- The claimant resigned on 15 April 2022 and his employment ended on 10 June 2022. He first contacted ACAS on 11 August 2022, obtaining a certificate on 22 September 2022. He then paused conciliation to seek union help, and only presented his claim on 30 December 2022.
- For the Employment Rights Act claims (unfair constructive dismissal, whistleblowing, unlawful deductions), the tribunal found it was reasonably practicable for the claimant to have presented them by 22 October 2022 (one month from the ACAS certificate). The delay to 30 December was not justified.
- For the Equality Act claims (race, sex, disability discrimination), the tribunal considered whether it was 'just and equitable' to extend time. It declined, noting the further delay of over two months and the lack of good reason.
- No compensation was awarded as the claims were dismissed.
Lessons & takeaways
- The one-month time limit to present a claim after an ACAS early conciliation certificate is strict; waiting for union assistance does not automatically extend it.
- If you need legal advice, seek it promptly or present a protective claim within the time limit to preserve your rights.
- The 'just and equitable' test for discrimination claims is more flexible than 'reasonably practicable', but delays of over two months without good reason are unlikely to succeed.
- Keep records of all communications with ACAS, your employer, and any advisors to explain any delay.
- Presenting a claim in time is crucial even if you are still gathering evidence or seeking representation.
A cautionary tale about time limits
This case shows how strict employment tribunal time limits can be, even when a claimant is trying to do the right thing by seeking union representation. The claimant, a Band 6 mental health crisis team worker with three years' service, resigned after receiving a first written warning following a disciplinary process. He believed his treatment was linked to his race and gender, and wanted to bring claims for unfair constructive dismissal and discrimination.
However, the timeline of his claim proved fatal. After resigning in April 2022, he contacted ACAS in August, obtained a certificate in September, but then paused conciliation to pursue union assistance. He did not present his claim until 30 December 2022 – over two months after the one-month deadline from the ACAS certificate. The tribunal found that it was reasonably practicable for him to have presented his Employment Rights Act claims by 22 October 2022, and that the delay was not justified.
What the respondent did right
Rotherham Doncaster and South Humber NHS Foundation Trust, represented by counsel, successfully argued that the claims were out of time. The tribunal noted that the claimant had access to the ACAS certificate and was aware of the time limit. The fact that he chose to wait for union help – which ultimately did not materialise – was not a sufficient reason for the delay. The tribunal also declined to extend time for the discrimination claims, finding that a further two-month delay was not just and equitable.
What this means for similar claims
This case is a stark reminder that time limits are strictly enforced. Claimants should not assume that waiting for legal representation or union support will pause the clock. The safest approach is to present a claim within the initial time limit – even if it is a placeholder – and then seek advice. For discrimination claims, the 'just and equitable' test offers some flexibility, but delays of more than a few weeks without a compelling reason are unlikely to succeed. If you are considering a tribunal claim, act quickly and seek advice early to avoid losing your right to bring a case.
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