As part of the government’s aim to reduce employment litigation, a mandatory Tribunal pre-claim conciliation process is about to be introduced.
This early conciliation process was introduced on a voluntary basis on the 6th April 2014, and will be mandatory for most Employment Tribunal claims from the 6th May 2014.
What is early conciliation?
Early conciliation requires employees to submit an early conciliation form (EC form) to ACAS before bringing a claim. The EC form sets out the employee’s details and the details of their employer; however no information is required about the nature of their claim.
Once the EC form has been submitted and the prospective claimant has confirmed that they wish to undertake early conciliation (the employee does not have to participate any further in the process), ACAS will appoint a conciliator to the case. The conciliator will contact the employer, and ascertain whether they wish to participate in early conciliation (participation on the employer’s part is not mandatory either). Where both parties consent to undertake early conciliation, the conciliator will have one month to promote a settlement between the parties. If the conciliator thinks there is a reasonable prospect of achieving settlement ACAS can, with the consent of both sides, extend discussions for a further 14 days beyond the end of this one month period.
If the parties are able to settle the dispute, the settlement can be recorded in a COT3 or settlement agreement. ACAS will then issue a certificate to conclude the dispute.
If settlement is not reached, because the conciliator considers that settlement is not possible, either party withdraws from the process or is not interested in pursuing conciliation or the prescribed period expires, a certificate will be issued by the conciliator confirming that the parties have satisfied their obligation to engage in early conciliation. The employee can then proceed to bring the claim.
Please note that if during early conciliation either of the parties is un-contactable conciliation will not take place and ACAS will issue a conciliation certificate.
Potential claimants will require the conciliation certificate to commence proceedings as it will be necessary to provide an early conciliation reference number (as set out on the certificate) on the ET1.
Once the early conciliation process is commenced the limitation period for the employee to lodge their claim will be suspended until ACAS issues a conciliation certificate to confirm the end of the early conciliation process.
The time period for lodging a claim restarts once the early conciliation certificate has been issued. If the relevant time period would have expired during the conciliation period, the claimant will have one month from receipt of the conciliation certificate in which to lodge their claim.
This extension to the limitation period may cause uncertainty when it comes to the calculation of filing dates. This could then lead to “satellite litigation” on whether claims have been brought in time.
Will early conciliation be useful to employers?
There are no fees for either party for pursuing early conciliation. If a settlement is reached this can save the costs and fees associated with taking a claim to tribunal.
If the negotiations between the parties fail, the discussions between the parties will be confidential and without prejudice, and therefore cannot be relied upon in subsequent proceedings.
Difficult/high profile cases
The early conciliation procedure will alert employers to any difficult/high profile cases that could be commenced against them. This will be useful if there have been no preceding grievance or disciplinary proceedings which may have alerted the employer to the fact that there may be a potential claim. Employers can then deal with or settle these claims before proceedings are issued.
Non-compulsory nature of the process
As early conciliation is not compulsory for either party, claimants will be able to notify ACAS of the claim, and request that the employer is not contacted. Therefore employers may be unaware of potential claims against them. This may reduce how effective this process will be.
Employers should be mindful that employees may initiate early conciliation to secure a settlement of claims that they have no intention of pursuing, especially now that there is a fee to take cases to tribunal.
Further, employers may not be willing to engage in early conciliation where the information provided is so limited. As the claimant is not required to give more than contact information on the EC form the employer may be commencing negotiation without an understanding of the claim, particularly where there has been no preceding grievance or disciplinary procedures. Employers may want to wait for further information to enable them to consider the legal merits of the complaint and quantify its potential liability.