Constructive dismissal claim dismissed as nine months out of time
A former employee's claims of automatic constructive unfair dismissal and sexual orientation harassment were struck out after he presented his claim nine months late, despite having initially filed on time but without an ACAS certificate.
1 min read · Last updated 19 May 2026
Case details
- #out-of-time
- #jurisdiction
- #automatic-constructive-dismissal
- #sexual-orientation-harassment
- #protected-disclosure
- #acas-early-conciliation
Key facts
- The claimant was employed from 6 April 2022 to 8 June 2022.
- The claimant resigned on 8 June 2022 and presented his first ET1 the same day.
- The first claim was struck out on 6 June 2023 for lack of an ACAS Early Conciliation Certificate.
- The claimant re-presented his claim on 6 June 2023, nine months after the primary limitation period expired.
- The claimant alleged automatic constructive unfair dismissal and sexual orientation harassment.
- The tribunal found the claimant's explanations for the delay not credible and dismissed both claims as out of time.
Timeline
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Employment commenced
The claimant started working for Park Holidays UK Limited.
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Alleged harassment and protected disclosure
In the last week of his employment, the claimant claims he was subjected to harassment on grounds of sexual orientation and made a protected disclosure.
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Resignation and first ET1
The claimant resigned and presented his first employment tribunal claim online, but without an ACAS Early Conciliation Certificate.
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Grievance lodged
The claimant brought a formal grievance against the respondent.
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Primary limitation expired
The three-month time limit for bringing claims expired.
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Respondent raised lack of ECC
The respondent notified the claimant that his first claim lacked an Early Conciliation Certificate.
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ACAS Early Conciliation commenced
The claimant started ACAS Early Conciliation.
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ECC issued
ACAS issued the Early Conciliation Certificate.
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First claim struck out
The tribunal struck out the first claim due to lack of ECC.
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Second claim presented
The claimant presented the current claim, which was nine months out of time.
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Preliminary hearing on time limits
The tribunal heard evidence and submissions on whether to extend time.
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Judgment issued
Employment Judge O'Rourke dismissed both claims for want of jurisdiction as they were presented out of time.
The legal issue
The tribunal had to decide whether to extend the time limit for claims of automatic constructive unfair dismissal and sexual orientation harassment, which were presented nine months after the primary three-month deadline expired. For unfair dismissal, the test is whether it was 'not reasonably practicable' to present in time; for discrimination, the test is whether it is 'just and equitable' to extend time.
The outcome
The tribunal dismissed both claims as out of time.
- The claimant resigned on 8 June 2022 and presented his first claim the same day, but it was struck out on 6 June 2023 because he had not obtained an ACAS Early Conciliation Certificate.
- He re-presented the claim on 6 June 2023, nine months after the primary limitation period expired on 7 September 2022.
- The tribunal found his explanations for the delay — including that he thought the first claim was valid and that he was waiting for a grievance outcome — were not credible. He had been notified of the missing certificate in February 2023 but did not start ACAS conciliation until March 2023.
- No compensation was awarded as the claims were dismissed at the jurisdictional stage.
Lessons & takeaways
- Always obtain an ACAS Early Conciliation Certificate before presenting an employment tribunal claim — it is a mandatory first step.
- If your first claim is rejected or struck out, act immediately to re-present it within the original time limit if possible.
- Waiting for a grievance outcome does not excuse missing the tribunal time limit — the two processes run in parallel.
- The tribunal will not extend time by many months unless there is a very good reason, such as serious illness or being misled by the employer.
This case shows how crucial it is to get the procedural steps right when bringing an employment tribunal claim. The former employee resigned on 8 June 2022 and filed his first claim the same day, but he had not obtained an ACAS Early Conciliation Certificate — a document that is now a compulsory first step for almost all tribunal claims. That claim was struck out a year later, and by the time he re-presented his claim, he was nine months past the three-month deadline.
What went wrong
The employee argued that he thought his first claim was valid and that he was waiting for the outcome of his internal grievance before pursuing the tribunal claim. However, the tribunal noted that the respondent had told him in February 2023 that his claim lacked the certificate, yet he did not start ACAS conciliation until March 2023 — after the deadline had already passed. The tribunal found his explanations 'not credible' and noted that he had not provided any medical evidence or other justification for the delay.
What the employer did right
Park Holidays UK Limited raised the missing certificate promptly and defended the claim on jurisdictional grounds. The tribunal accepted that the employee had not shown it was 'not reasonably practicable' to present the unfair dismissal claim in time, nor that it was 'just and equitable' to extend time for the discrimination claim.
Why this matters
This case is a reminder that the employment tribunal's time limits are strict and that ignorance of the ACAS Early Conciliation requirement is not a good excuse. Employees who miss the deadline — even by a few days — risk losing their right to bring a claim altogether, regardless of the merits of their case.
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