Stopping The Clock: Mandatory Pre-Claim Conciliation Takes Effect From 6 May 2014

by McDermott Will & Emery

As we mentioned in our last alert, the government has introduced a new, pre-claim conciliation procedure for employment disputes. As of 6 May 2014, that procedure became mandatory.

Before lodging the vast majority of Employment Tribunal claims, a potential claimant is now required to contact the Advisory, Conciliation and Arbitration Service (ACAS) and notify it of his/her intention to do so. The purpose is to promote the earlier settlement of disputes but, as you will see from the example timeframe set out below, the early conciliation (EC) process may itself be the cause of dispute.

What is The Process?

  1. The complainant sends the EC form to ACAS, or phones ACAS, giving his/her details and those of the potential respondent.
  2. ACAS tries to contact both parties. Neither party has to negotiate.

  3. If the parties want to try to reach agreement, ACAS will facilitate for up to one month. That period can be extended by up to 14 days if both parties agree to extend it.

  4. Once the conciliation period has finished, or earlier if it becomes clear that no deal will be done, the ACAS officer will issue an EC certificate.

  5. The complainant can file a claim at the Employment Tribunal.

What Does This Mean For Timelimits For Making a Tribunal Claim?

Timelimits as we know them will change. The EC process will extend the time available to a complainant to make his/her Tribunal claim.

The three month time limit that applies to most claims will stop running the day after the complainant files the EC form with ACAS. The clock starts again when the EC certificate issued by ACAS to signal that the conciliation process has ended (for whatever reason) is received by the complainant.

Timelimit Example

If the EC form is submitted by the individual on 8 May 2014, the time limit would pause on and from 9 May 2014. If the EC certificate is received on 30 May 2014, this is the last day for which the clock is paused.

To get to the new timelimit, work out when the original Tribunal timelimit would have expired.

Option 1: If that date falls after issue of the EC form and before the date on which the EC certificate is received plus one month, the “new” deadline to make the Tribunal claim is the end of that period. So, in the above example, if the three month time limit would have expired on 28 June 2014, the “new” deadline will be 30 June 2014, i.e., one month after the EC certificate date.

Option 2: If the date would not fall in that window, work out how many days the clock was paused for and add to the original deadline.

In our example, the clock was paused from 9 May to 30 May (inclusive), totalling 22 days. So, if the original Tribunal deadline had been 4 August 2014, the “new” deadline would be 26 August 2014.

There is clearly scope for miscounting and confusion.

For a step-by-step guide to the impact on time limits, please click here.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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