March 28, 2014

Early Conciliation: In depth

Early Conciliation is being introduced under the Enterprise and Regulatory Reform Act 2013.

The Act contains a range of measures which will hopefully provide the right conditions to encourage long term growth and support business success.

It address one of the fears that businesses have reported of having to defend an employment tribunal claim. These fears can sometimes impact on an employer’s decision to take on new staff and develop their business.

Changes are therefore being made to allow the parties in a dispute greater opportunity to resolve their own problems, without the need for recourse to an employment tribunal.  Where parties do come together in an employment tribunal, the process will be streamlined and simplified.

Early Conciliation will form part of this process. There will be a requirement for most potential tribunal claims to be referred to ACAS in the first instance. This will allow both parties an opportunity to resolve their dispute through conciliation before a claim is made.

When will early conciliation begin?

The requirement to engage in early conciliation will apply to claims presented to an Employment Tribunal on or after 6 May 2014. However, if during the period beginning 6 April 2014 to 5 May 2014, individuals contact ACAS for conciliation and present a claim, they will need an early conciliation certificate when presenting their claim to the Employment Tribunal.

The process of early conciliation

Claimants can contact ACAS online, by post or by telephone. The only requirement is that they provide their name and address and the prospective respondent’s name and address. They will not be required to provide details about the dispute at this initial stage.

A summary of the process that will follow is set out below:

  • An ACAS conciliation officer will contact the parties to gather further information and offer conciliation services.
  • There will be no obligation on either side to enter into the process.
  • Submission of an early conciliation (or EC) form will effectively ‘stop the clock’ on the limitation periods that apply for bringing an employment tribunal claim.
  • ACAS will have one calendar month to negotiate a settlement. The conciliation period may be extended for a maximum of 14 days if the parties agree and the conciliation officer considers there is a reasonable prospect of achieving a settlement before the extension expires.
  • If conciliation fails, is refused or ACAS is unable to make contact with the prospective claimant, ACAS will issue an EC certificate.
  • A claim may only be presented to an employment tribunal after a certificate from ACAS has been produced to confirm contact.

Timeframe

As mentioned above, submission of the EC form will effectively ‘stop the clock’ on the timeframe for bringing a claim.  This means in the majority of cases, the time limit will be three months in addition to the time of conciliation.  The clock will start again once ACAS has issued an EC certificate.

What does this mean for employers?

Under current arrangements, an employer will only discover the existence of a claim against them when an ET1 form arrives. Hopefully, these new measures will see an increase in the number of cases that are resolved before the tribunal stage.

Mandatory pre-claim conciliation is one way the Government is trying to reduce the burdens of an overloaded employment tribunal system. It is hoped that this pre-claim procedure, together with the introduction of tribunal fees last summer, will significantly reduce the number of cases that have little prospect of success.

Further support and advice

Should ACAS contact you about Early Conciliation and you wish to discuss the pros and cons of it, please contact our Employment Tribunal team on 0845 077 8881 option 3 for:

  • free professional guidance on the merits of engaging in  Early Conciliation
  • a percentage estimate of your prospects for successfully defending the claim
  • a realistic estimate of the potential value of a claim
  • where appropriate, the likely costs of defending the claim
  • negotiation via ACAS

*ACAS is the government-funded Advisory, Conciliation and Arbitration Service and one of its roles is to resolve workplace disputes without the need for court or tribunal proceedings.

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