Early conciliation (EC) will become mandatory for almost all tribunal claims from Tuesday 6 May 2014 onwards. This means that anyone who is thinking of bringing a tribunal claim must first contact ACAS about their complaint. If an individual fails to do so they will not be able to lodge a claim at the Tribunal (unless one of the very limited exceptions apply).
The aim of EC is to give parties the chance to settle employment claims through ACAS, rather than proceeding to an employment tribunal. For a full background to the EC process, you can view our previous update at 'Acas publishes new guidance on early conciliation'.
How will the EC process work?
As of 6 May 2014, save for a few exceptions, all claimants must use the EC procedure.
While a complainant must notify ACAS about their complaint, there is no obligation on a prospective claimant or respondent to actually conciliate or settle a claim if they do not wish to do so.
A prospective claimant or a prospective respondent can withdraw from the EC process. If this happens or if EC otherwise fails, ACAS will issue an EC certificate. This certificate will contain a unique number that must be included in a complainant's claim form (the ET1 form). If the claim form does not include this unique number, the Tribunal will not allow the claim to proceed.
If ACAS is unable to contact a complainant after they notify ACAS of their complaint, ACAS will presume that the complainant does not want to conciliate and ACAS will issue an EC certificate which will allow the complainant to continue with their claim.
If both parties are willing to enter into the EC process, the ACAS conciliator has a calendar month (from the date of first contact between ACAS and the complainant) in order to attempt to resolve the dispute between the parties. This period can be extended by up to 14 days if the conciliator considers that there is a reasonable prospect of achieving a settlement and both parties agree to the extension.
To encourage EC, the time limit for bringing a tribunal claim is effectively 'stopped' as of the day that ACAS receives an EC request. The clock will start again when the prospective claimant receives (or is deemed to have received) the EC certificate. If EC fails, the prospective claimant may therefore have one calendar month (or, if an extension has been granted, an additional two weeks) to lodge a claim.
If a claim is presented outside the extended time limit, the employment tribunal has discretion on whether to extend the relevant limitation period and accept the claim.
A request for EC can come from a prospective respondent, for example if they are aware of a potential claim. If this happens, similar duties of conciliation will apply to ACAS, except that there will be no specified time periods for the EC process to take place and the freeze on the time limit in which to bring a claim will not apply.
Any conciliation discussions will be conducted on a "without prejudice" basis. If the conciliation process does not succeed, the content of the discussions may not be referred to in subsequent tribunal proceedings.
If the conciliation process is successful, agreement may be concluded using an ACAS COT3 agreement in the normal way.
What will EC mean for me as an employer?
At the initial notification stage, the only information the prospective claimant has to provide about their case is:
employer name (and if they so wish, telephone contact number)
the date they started work
the date their employment ended (if applicable)
their job title
the date on which the event they intend to complain about occurred.
The first inkling you will have of a prospective claim is therefore likely to be a phone call from ACAS asking whether you are interested in conciliation. Until the conciliation process begins, you may have little indication of what the claim is about (although in most cases you will probably have a shrewd idea!).
From an employer's perspective, the advantage of early conciliation is that it will give you advance notice of a potential claim, and the option to settle before formal litigation gets under way. Where you know that you have a weak case, or want to avoid undesirable publicity, early settlement may prove attractive.
However, you should be wary of prospective claimants who seek to use EC where they have a weak case and may be unwilling/unable to pay the tribunal fees. In such circumstances, you may prefer to decline the invitation to enter EC and wait and see if a complainant brings a tribunal claim. There is no penalty in tribunal proceedings for an employer who has refused to engage in early conciliation.
If you receive a call from ACAS about pre-conciliation, and are unsure about how to proceed, don't hesitate to call your usual contact in TLT's Employment team.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2014. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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