New UK legislation introducing Advisory, Conciliation and Arbitration Service (Acas) Early Conciliation, contained in the Enterprise and Regulatory Reform Act 2013 became operative on April 6, 2014 and will become mandatory on May 6, 2014.
The legislative changes involve:
- With certain exemptions, a claimant must make an Early Conciliation Notification to Acas before they can lodge a claim with the Employment Tribunal (Tribunal). The Tribunal will reject a claim unless the complaint has been referred to Acas and an Early Conciliation Certificate issued; and
- Extending the deadline for a claimant to lodge a Tribunal claim to take account of the period of Early Conciliation.
The changes seek to reduce the number of Tribunal proceedings by encouraging parties to settle claims through Acas. Early Conciliation can last for up to a month, although this can be extended by an additional 14 days if the parties consent. However, if either party refuses to engage in the process, the claimant will be issued with an Early Conciliation Certificate and they will be able to proceed with their claim to the Tribunal.
The changes raise a number of key considerations for employers:
- Time Limits – The limitation period for claimants to bring claims now takes into account the Early Conciliation period. Early Conciliation effectively “stops the clock” for the period of the conciliation. In circumstances where the time limit for bringing a claim would have expired during the Early Conciliation period or during the month after the Early Conciliation Certificate was issued, the time limit will now be extended for a whole month and not just the period of Early Conciliation.
- Limited information available – Conciliation Officers will try and obtain information about the claim from the claimant but without a requirement for the claimant to provide full details it remains to be seen whether they will be able to extract enough information to allow employers to assess the claimant’s claim
and decide whether to engage in the Early Conciliation process.
- Uncertainty of Application – Doubt has been cast about how the Early Conciliation rules will work in practice. The Tribunal decides whether a claim has been brought within the limitation period raising the question whether the Tribunal will extend the limitation period where unrepresented claimants calculate dates wrongly. It is also unclear whether Acas will be able to cope with the increase in its workload resulting from the introduction of Early Conciliation. There may be administrative issues and a backlog of notifications.