Back in March last year we outlined the new ACAS early conciliation procedure. This aims to resolve disputes quickly and without the need for legal action through the free Early Conciliation service. Just over one year on, we review some recent cases concerning the interpretation and enforcement of the new rules and also review the latest ACAS quarterly reports so far produced.

A reminder of the scheme

The ACAS early conciliation scheme was introduced to encourage settlement before an employment tribunal claim is raised. It became available in April 2014 and then became mandatory on 6 May 2014.

Under the scheme, prospective claimants must contact ACAS by telephone, or by submitting a completed early conciliation form online or by post prior to submitting an Employment Tribunal claim form. ACAS then has a month to try to facilitate settlement. If the ACAS conciliation officer believes that settlement is likely and both parties consent then an additional 14 days can be granted. Where the conciliation officer has been unable to contact the parties or settlement between the parties is not possible, the prospective claimant will be issued with an early conciliation certificate. This contains a unique reference number enabling them to lodge an Employment Tribunal claim.

Indications of the uptake of early conciliation

Three quarterly reports have now been issued by ACAS – the latest of which showed that the service had dealt with 60,855 cases from 6 April 2014 until the end of December 2014. Of those less than 2000 were the result of employer (rather than employee) notifications. As some of the employee notifications were made on behalf of a group of employees (e.g. in holiday pay cases) this means that notifications covering over 76,000 employees were received in the first nine months.

In most cases parties are willing to talk about the issues and this creates a better understanding of the dispute which helps resolve the matter either immediately or as the matter proceeds. Less than 10% of employees rejected the offer to conciliate. For the majority of employees who accepted conciliation and for whom ACAS made contact with the employer, only 11.3% of employers then rejected the offer of conciliation in the first nine months.

Almost all of the notifications received by ACAS in the first six months have now reached an outcome. Of these about 17% progressed to settlements achieved through Acas as COT3 agreements. A further 60% did not progress to tribunal, either because employees decided not to take their matter further or because other settlement agreements were reached. The other 23% of disputes progressed to a tribunal claim. It will be interesting to see how these figures develop when ACAS releases statistics for the last quarter up to March 2015 especially if the trend for holiday pay claims continues which was observed by ACAS Chief Executive who commented that "our conciliation experts dealt with a record number of notifications over this period. We believe this increase is due to the impact of holiday pay overtime claims."

Recent cases

Wrong Early Conciliation number

Perhaps unsurprisingly with the introduction of the mandatory early conciliation service, disputes have arisen concerning the correct application of the procedure. In Sterling v United Learning Trust UKEAT/0439/14 an employment tribunal rejected a claim that was submitted out of time due to the Claimant entering the wrong Early Conciliation number on it. The Claimant had submitted an ET1 claim form, fee and application for remission to an employment tribunal office "missing some digits from the EC number, the tribunal inferred" four days before the expiry of the limitation period.  It was returned to her as rejected but sent to the wrong house address so that it could not be re-submitted in time. The tribunal held that the claim could not be heard as it was out of time. On appeal the employee argued that the employment tribunal was not entitled to make such an inference. The EAT disagreed and said that because she had not fully entered the ACAS conciliation number she had been given on her application form, the Employment Tribunal had been obliged by the employment tribunal Rules to reject it. Although a party may apply for reconsideration of such a rejection this had not been done and neither had the representative argued that it was not reasonably practicable for the employee to have lodged the claim in time. The EAT concluded that the reason for being out of time was the failure of the Claimant to record the ACAS number fully and correctly, a conclusion it was entitled to reach.

Failure to contact ACAS under the early conciliation procedure

In Cranwell v Cullen UKEATPAS/0046/14 the claimant, understandably, had been reluctant to initiate the early conciliation procedure because the claim involved allegations of sexual harassment and physical abuse. However the employment judge rejected her claim, as he was obliged to do under the tribunal rules because the employee had not contacted ACAS before lodging the claim. The employee appealed but the EAT dismissed the appeal. Although it noted that ‘the very thought of conciliation… would be problematic’ in the Claimant's case, had she explained the situation to the ACAS Early Conciliation Officer, they would probably have concluded that there was no point in conciliation and would have granted the early conciliation certificate, allowing the claim to proceed. However the rules were clear that the claim had to be rejected because the early conciliation procedure had not been complied with.  

Both these and other cases indicate that the tribunals are ensuring that the early conciliation procedure is strictly adhered to so that it is important for employees (and employers) to comply with the rules applying to early conciliation.

Early conciliation does provide a forum for a third party to mediate as an alternative to parties embarking on, potentially costly, litigation. We await publication of the fourth quarterly statistics to see how effective this procedure continues to be against a backdrop of the continued effect of tribunal fees on employment litigation.