Pre-claim ACAS Conciliation became mandatory for most Employment Tribunal claims from 6 May 2014. Before bringing a Tribunal claim ACAS must first be contacted with a view to establishing whether the parties’ dispute can be resolved through conciliation. Failure to do so means that any claim to the Employment Tribunal will be automatically rejected. In this update, we provide you with an overview of the Early Conciliation Scheme and set out our predictions in terms of its implementation in practice.
Early Conciliation Scheme
The requirements under the Scheme are as follows:
- Stage 1
The prospective Claimant notifies ACAS that he or she intends to bring an Employment Tribunal claim.
- Stage 2
ACAS makes reasonable attempts to contact the prospective Claimant and, if he or she agrees to early conciliation, passes the case details on to a Conciliation Support Officer.
- Stage 3
The Conciliation Support Officer, having obtained the prospective Respondent's consent to early conciliation, has a month to attempt to resolve the dispute between the parties (subject to the power to extend by a further two weeks). If a settlement is reached, ACAS records the terms of the agreement between the parties by way of a COT3 Agreement.
- Stage 4
Where early conciliation is refused or is unsuccessful, the prospective Claimant is issued with an Early Conciliation Certificate confirming that the requirement for early conciliation has been complied with.
Early conciliation is mandatory with respect to the majority of potential Employment Tribunal claims, bar those that have not been considered to be appropriate for the Early Conciliation, including, for example, an unfair dismissal claim that is brought together with an application for interim relief and a reference to the Employment Tribunal for determination of an employee's entitlement for payment out of the National Insurance Fund.
In order for a Claimant to initiate the Early Conciliation process they are simply required to provide some basic information to ACAS. The information includes their name, address and the name and address of the Respondent. Somewhat surprisingly Claimants are not required to provide any details of the nature of the claim they are considering bringing. It has been decided to leave it to the Conciliation Support Officer to establish this, having made contact with them. This decision was reached on the back of concerns that a non-legally represented Claimant may encounter difficulties in correctly formulating the details of their complaint and may as a result be prevented from subsequently pursuing an Employment Tribunal claim which went beyond the scope of the original intentions they indicated to ACAS. However, this appears to ignore the fact that a large number of Claimants who go on to make a claim to the Employment Tribunal will, in the same way, not be legally represented. We anticipate that there is a risk that certain aspects of the details of the complaint, and the response from the employer, may end up being lost in translation.
Tribunal Claim Time Limits
The time limit for making a claim to the Employment Tribunal has been extended to take account of the mandatory Early Conciliation Scheme. The manner in which the extension to the standard time limit applies can be broken down into two distinct processes:
- When an employee initiates the early conciliation process by contacting ACAS, the clock automatically stops in terms of the time limit for making the Tribunal Claim. The clock remains on pause up until the employee receives, or is deemed to have received, the Early Conciliation Certificate from the Conciliation Support Officer indicating that the period of early conciliation has come to an end. This will normally be for a period of one month, but may be extended by a further period of two weeks.
- An additional extension has been provided to Claimants where the time limit for issuing their claim at the Employment Tribunal falls between the period beginning with the day they initiate the Early Conciliation process and one month after the Claimant receives the Early Conciliation Certificate. In such circumstances the time limit will expire at the end of that period. In other words, where the standard time limit for issuing an Employment Tribunal claim is due to expire during or shortly after the usual period for Early Conciliation the employee is automatically given one month from the date when they receive, or are deemed to have received, the Early Conciliation Certificate to present their claim to the Tribunal. The purpose of giving this additional extension was due to a concern that prospective claimants may be reluctant to settle a claim close to the end of Early Conciliation period because they are afraid that they may not be guaranteed to receive payment of the settlement sum before the limitation period for making a claim runs out. Although, those who deal with such settlements on a regular basis will know that it is common practice to enter into such an agreement shortly before the Employment Tribunal Hearing, if not at the doorstep of the Tribunal, with an assurance being given to the employee that the settlement payment will be made and thus the Hearing can be vacated.
It is important to note that the rules on extension to the time limits for submitting an Employment Tribunal claim do not apply where the Early Conciliation process has been commenced by the employer, rather than the employee. This may result in the more shrewd employers, faced with an almost guaranteed Employment Tribunal claim, opting to commence the Early Conciliation process themselves, thereby looking to prevent the time limit extensions applying. This may result in the employee, in the absence of them being aware of the need to commence the Early Conciliation process (as well as the employer) in order to ensure that they obtain the benefits of the extension to the time limit, thinking they have gained the advantage of the extension as a result of their engagement in the Early Conciliation Scheme when in fact they do not.
The implementation of the compulsory Early Conciliation process is to be welcomed if it increases the prospects of employees and employers finding alternative resolutions to disputes thereby preventing them from having to take matters to the Employment Tribunal. To what extent this will be borne out in practice will become evident in the near future.