The government has published its response to the consultation on mandatory Early Conciliation (EC) which looked at a number of practical issues relating to how the new scheme will work. The Enterprise and Regulatory Reform Act 2013 sets out the regulatory framework for EC, which requires a prospective claimant to contact Acas to attempt conciliation (generally over a one month period), prior to submitting a Tribunal claim.
Six key issues were raised during the consultation:
- The content of the Early Conciliation form
To commence the EC process, prospective claimants will be required to submit a request form to Acas. The government's response confirms that details of the dispute which has given rise to the potential Tribunal claim will not be required on the EC form. The intention is that Acas will obtain information about the dispute from the individual during conversations. Acas' experience of the current pre-claim conciliation service (PCC), which does not require claimants to provide written details of their dispute, is that the absence of written information is not a barrier to successful resolution.
The government has acknowledged that, as a result, a claimant may include a claim on the ET1 that was not part of the EC discussion. However, it considers that this is unlikely to occur very often in practice, and also said that the purpose of EC is not to prevent judicial determination but simply to offer an opportunity to settle a dispute.
- Jurisdictions exempt from Early Conciliation
The government has agreed with many respondents to the consultation that where a claimant makes an application for interim relief, there should be no obligation for the claimant to have complied with the EC requirement in relation to the underlying unfair dismissal claim. (Interim relief is available in respect of dismissals on the grounds of trade union membership or activities, making a protected disclosure or an employee's activities as a representative in various contexts).
Claims arising from TUPE 2006, including a failure by an employer to pay a protective award ordered by a Tribunal, and whistleblowing claims, will be subject to EC. There had been some calls for these claims to be exempt.
- The Early Conciliation Support Officer (ECSO) model
Under the government's proposals, once an EC request has been submitted to Acas, an Early Conciliation Support Officer (ECSO) will contact the claimant to confirm basic details about the claimant, briefly set out the next stage of the process and collate all relevant information. The second stage will be contact by a conciliator who will formally establish whether the claimant wishes to engage in EC. The government takes the view that the role of the ECSO should allow the conciliator to have a shorter, more focused conversation with the prospective claimant on the basis that he or she is better prepared.
70% of respondents to the consultation supported this model, which has been successfully piloted by Acas in the PCC.
- Limit on Acas' attempts to contact parties
The government's response has confirmed that Acas will have discretion over when to terminate the EC process in the event that it is unable to contact either party after making "reasonable" attempts. The government will work with Acas on creating guidance for ECSOs on this issue.
Furthermore, the response confirms that where EC is declined by a prospective claimant, or where the claimant is unsure as to whether to proceed with EC, Acas will not contact the respondent without the claimant's express consent. This is to allay concerns from employers regarding unnecessary time and cost should a claim not, in fact, be brought, and concerns from prospective claimants that they could be dissuaded from using EC if they felt that the conciliator would contact their employer.
- The content of the Early Conciliation Certificate
An EC Certificate confirming that the EC process has been completed will not contain any details of the prospective claim or dispute as this would be inconsistent with the EC request form.
- Prospective respondent requests for Early Conciliation
The government has confirmed that employers will be able to use the EC process to settle potential claims.
The new scheme is due to take effect in April 2014. Please click here for the government's response to consultation, and here for our previous alert on EC which sets out the key details of the new scheme.