Conciliation is not a new concept: for many years employers and employees have had access to a voluntary conciliation and arbitration service, known as “ACAS”, to assist them (should they request it) with resolving employment disputes before they find themselves in front of an Employment Tribunal.
So what’s changing? As part of the Government’s initiative to boost the efficiency of the Employment Tribunal system, the existing voluntary pre-claim conciliation service provided by ACAS will become mandatory (save for very limited types of claim), for claims issued on or after 6 May 2014. A prospective Claimant will be under a duty to explore ACAS Early Conciliation before their claim is issued.
So what will this entail? For claims issued on or after 6 May 2014, there are essentially four steps that will need to be taken before a claim can be presented to an Employment Tribunal:
Step One: The prospective Claimant must submit a completed “Early Conciliation Form” to ACAS providing their own contact details and that of the prospective Respondent(s). Surprisingly, at this stage there is no requirement for details regarding the nature of the prospective claim to be provided.
Step Two: Upon receipt of the Early Conciliation Form, one of ACAS’ Early Conciliation Support Officers will make reasonable attempts to contact the prospective Claimant to offer their conciliation services. If the prospective Claimant accepts the offer of conciliation, the Early Conciliation Support Officer will attempt to contact the Respondent(s) with a view to obtaining their agreement to engage in Early Conciliation.
Step Three: If the offer of conciliation services is accepted (surprisingly, there is no obligation on either party to do so), a Conciliator will be appointed and they will have one calendar month (which can be extended by up to two weeks in certain circumstances) to try and settle the claim.
Step Four: If conciliation is successful and a settlement reached, the parties will enter into an agreement recording the agreed terms and the matter will be resolved. If the offer of conciliation is rejected or conciliation fails, an Early Conciliation Certificate will be issued to the prospective Claimant at which time they will be free to submit their claim to the Employment Tribunal.
From 6 May 2014, for relevant claims to be accepted, Claimants will therefore have to include on their Claim Form the unique Early Conciliation reference number which will be provided on the Early Conciliation certificate issued by ACAS once the above steps have been taken. If this reference number is omitted, the claim will be rejected.
The strict time limits that currently apply for bringing an Employment Tribunal claim will remain but the clock for these time limits will stop from the date when the prospective Claimant contacts ACAS until they receive (or are deemed to have received) an Early Conciliation Certificate.
Once a claim has been issued, ACAS will still be available in the same way as it is now to assist the parties in resolving matters without the need to go to a final hearing.
So will this “mandatory” scheme have the desired effect of encouraging parties to settle claims early? The commercial reality of the concept of Early Conciliation is that if a matter can be resolved without the need for a formal Tribunal claim to be issued, it potentially saves both parties money (particularly potential Claimants who will be relieved of the burden of having to pay to issue their claim). Early Conciliation can also deliver outcomes not otherwise available in an Employment Tribunal, such as an agreed reference or an apology, which may appease a potential Claimant. However, we do question how a potential Respondent can properly assess whether settlement is a good business decision without being afforded the opportunity to fully consider the details of the alleged claim and tactically, potential Respondents may refuse to settle during Early Conciliation in order to find out how serious a potential Claimant is about their claim (and whether they can afford to pay the issue fee).
The fact that the parties are not actually obliged to accept the offer of conciliation does also seem at odds with the concept of Early Conciliation being “mandatory” and some critics view the change as nothing more than a way of enabling potential Claimants to use the Early Conciliation process to artificially extend the time limit for issuing their claim which may itself result in an increase in litigation about whether time limits have been complied with.
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