Employers and employees have long been able to volunteer to take part in conciliation to seek to resolve their disputes with the assistance of the Advisory Conciliation and Arbitration Service (“ACAS”). This service is most often used after a claim has been issued in the employment tribunal.
However, from 6 May 2014, it will be mandatory for the vast majority of prospective claimants to contact ACAS and attempt “early conciliation” before they can issue a claim in the employment tribunal.
To which cases will early conciliation apply?
Except in limited circumstances, early conciliation will apply to all claims of unfair dismissal, workplace discrimination, redundancy payments or disputes about selection procedures, deductions from wages or unpaid notice/holiday pay, and equal pay. Early conciliation will not be required in matters where a very limited timeframe exists for bringing a claim, such as an interim relief application in cases of dismissal for trade union membership or whistleblowing.
What will the process be?
The process for early conciliation will be as follows:
The prospective claimant must submit an early conciliation request form to ACAS. The form will ask for basic information, such as the contact details of the claimant and the respondent and will not ask for any details of the dispute. This has the effect of “stopping the clock” on the time limit for bringing a tribunal claim. The time limit clock only starts again on the receipt of an Early Conciliation Certificate.
ACAS will pass the information on the request form to an Early Conciliation Support Officer (“ECSO”) who will contact the claimant and ask for basic information about the claim, such as the individual’s length of employment and the date of dismissal or the incident complained of. The ECSO will explain the conciliation process and deal with any misunderstandings about the claim, such as qualification periods. If the claimant decides not to pursue the claim, ACAS will issue an “Early Conciliation Certificate” which the claimant will have to present if the individual decides to bring the claim at a later date.
If the claimant decides to pursue the claim, the ECSO will pass the matter to an ACAS conciliator. The claimant will be asked by the conciliator whether the individual wishes to settle the dispute. If the claimant wants to proceed, the conciliator is obliged to proceed with conciliation and will contact the respondent to see whether it is also willing to discuss settlement.
If both parties are willing to discuss settlement, the conciliator has one month from receipt of the request form to mediate, but will not be permitted to advise on the merits of the claim. The discussions between the parties during the process will be on a ‘without prejudice’ basis so they cannot be put before the tribunal. The conciliation period can be extended by a further two weeks if the parties agree and there is a prospect of achieving settlement. If early conciliation is successful, a legally binding settlement agreement will be signed by the parties.
If conciliation fails, whether because the ECSO was unable to contact either party, one of the parties opted out of conciliation or the parties did not reach an agreement before the expiry of the conciliation period, ACAS will issue an Early Conciliation Certificate stating that the claimant has fulfilled the early conciliation duty.
Once the claimant has the Early Conciliation Certificate, the individual can lodge a claim in the employment tribunal. The claim form ET1 will include a section for the claimant to enter his unique early conciliation reference number.
Can respondents apply for early conciliation?
Respondents can apply for early conciliation themselves, rather than waiting for the potential claimant to do so, if they consider that a claim is likely to be brought against them. The process is similar to that outlined above. However, if a respondent commences the early conciliation process, the clock on the employment tribunal time limit for the claimant to bring a claim will not stop and will continue to run. The case will also be referred straight to a conciliator without going through an ECSO.
What effect will early conciliation have?
There is no compulsion on either party to participate in early conciliation. There may be cases where an employer may find early conciliation to be an inexpensive and useful way to try to resolve a potential claim at an early stage when other methods have failed. In other cases, an employer may wish to wait and see if the claimant is committed to litigation, by presenting a claim and paying the relevant fee if applicable. ACAS hopes that early conciliation will enable disputes to be resolved as early as possible in a quick and cost effective manner. Ultimately, whether the early conciliation process actually leads to more out of tribunal settlements will depend on the respective positions of the claimant and the respondent and how they wish to address their dispute.