Whilst mandatory Early Conciliation is not yet a current requirement, we understand that the reforms provided for under the Employment Act (Northern Ireland) 2016 will be pushed through in January 2020, even if the local Assembly remains deadlocked.
Given that the indication is that Early Conciliation is likely to be brought into force early next year, employers should begin to familiarise themselves with the process now, in preparation for the proposed commencement date.
This article sets out how the process works in practice, as well as the key points for employers to consider.
In England, Wales and Scotland, Early Conciliation is offered by The Advisory, Conciliation and Arbitration Service (ACAS) with the aim of settling a matter without the need for a legal claim to be lodged with an Employment Tribunal.
ACAS has a statutory duty to offer Early Conciliation for an initial period of up to a calendar month, with the conciliator having the discretion to extend that by two weeks if both parties agree that extra time may help resolution.
During this Early Conciliation period the time limit for submitting a Tribunal claim is paused. However, if a claim is already out of time by the time ACAS is notified, it will still be late when Early Conciliation ends, as no adjustment is made in these circumstances.
Early Conciliation Certificate
If the ACAS conciliator
- cannot make contact with either party; or,
- if either party (or their representatives) advises that they do not wish to take part in Early Conciliation; or
- if the conciliator believes that no resolution can be reached
an Early Conciliation Certificate (EC Certificate) will be issued.
When the EC Certificate is issued, the time limitation clock for lodging an Employment Tribunal claim restarts. However, ACAS can continue to offer conciliation right up to the point of a claim being decided by the Tribunal.
Claimants must quote the unique reference number from the ACAS EC Certificate on their tribunal application form as evidence that they have notified ACAS of an intention to make a tribunal claim. Without an EC Certificate reference number, a claim cannot be lodged.
Labour Relations Agency
The Labour Relations Agency (LRA) currently offers pre-claim conciliation to parties upon notification of a Tribunal claim in NI, as part of its statutory duty to promote settlement.
Under the forthcoming compulsory Early Conciliation scheme, other than in certain circumstances, the details of a claim must be passed to the LRA before a claim can be lodged with the employment tribunal.
Remember also, if you settle a complaint through the LRA, the agreement is legally binding and no tribunal claim can then be brought about that matter.
Whilst this development means that claimants will be forced to engage with a conciliation process before commencing a claim, it means that employers will need to be alive to possible claims for a longer period of time. It does, however, mean that employers will have advance notice of formal proceedings, and may increase the prospect of resolution before a claim gets off the ground.