On 6 May 2014, ACAS Early Conciliation (EC) became mandatory for the majority of prospective claimants in employment tribunal claims.
Before they can lodge proceedings, claimants must submit a form to ACAS or telephone them. However it is only mandatory for claimants to contact ACAS - they do not actually have to take part in any pre-claim conciliation.
The conciliation period will usually last for up to one calendar month, although this can be extended for up to 14 days. If at any point ACAS concludes settlement is not possible, it must issue an ECcertificate. The claimant can then present their claim to the tribunal.
The most important element to understand is the so-called 'stop the clock' mechanism. Once a prospective claimant has contacted ACAS, the time limit to present their claim will be extended to take account of the conciliation period. In practice, however, this is not as simple as it sounds.
Stopping the clock
The period beginning with the day when the claimant contacts ACAS (Day A) and ending on the day when they receive or are deemed to have received the EC certificate (Day B) will 'stop the clock'. In working out this 'pause' period, you count the period beginning with the day after Day A and ending with Day B.
It is not, however, as simple as adding this 'pause' period to the end of the limitation period as the actual extension triggered will depend upon when Day A and Day B actually fall. The new mechanism makes calculating the time limit for presenting a claim at tribunal much more complex. Some working examples below illustrate the operation of the 'stop the clock' mechanism in practice.
There is already some debate about how the mechanism will operate in practice. Where a prospective claimant contacts ACAS with less than one month to go before the expiry of the tribunal time limit (the 'late contact' example below), they have a month from the day they receive the ECcertificate in which to bring the claim. Unfortunately what is meant by 'one month' is unclear. The information prepared by HM Courts and Tribunals Service to date states that, in these circumstances, if Day B is 5 June, then the last day for bringing a tribunal claim would be 4 July. However there is also commentary which suggests that the last day for bringing a claim would be 5 July. Employers should be aware therefore of the scope for argument about the timeliness of claims lodged at the end of the period.
Click here to view table.