As part of its plans to make the tribunal system more efficient, the government decided to impose a duty on the parties and ACAS to attempt early conciliation (“EC”) of most employment disputes (“relevant proceedings”) before a tribunal claim can be issued.
The new system of EC has been available since 6 April 2014. The period between 6 April and 5 May 2014 was a transitional period, with the system becoming mandatory for prescribed claims presented on or after 6 May 2014.
ACAS has produced a guide to support the new system of EC, entitled "Early Conciliation Explained" which can be found here
In summary the system works as follows:
Before a prospective claimant can "institute relevant proceedings" (i.e. present a claim to a tribunal in certain cases), they must comply with the duty to participate in EC.
There is a long list of the relevant proceedings but the usual claims of concern, namely unfair dismissal claims and discrimination claims are subject to the EC process. Claims under the Agency Workers Regulations 2010 are also subject to EC.
The mandatory EC procedure can be broken down into the following steps:
Step 1: A prospective claimant who wants to institute relevant proceedings must provide "prescribed information" in the "prescribed manner" to ACAS. This may be done using an EC form or by telephoning ACAS.
Step 2: An early conciliation support officer (“ECSO”) will make initial contact with the prospective claimant. The ECSO will explain the EC process, take some details from the prospective claimant and check that they wish to proceed with conciliation. As long as they do, the prospective claimant's information will be sent to a Conciliation Officer (“CO”).
Step 3: The CO will contact the prospective claimant. In addition to discussing their complaint, the CO will check that the prospective claimant agrees to the CO contacting the prospective respondent. As long as the CO is able to contact the prospective respondent and the prospective respondent is willing to participate in EC, the CO must try to promote a settlement between the parties within the "prescribed period" (“EC period”). The EC period is one calendar month from the date on which the prospective claimant made initial contact with ACAS. It may be extended once, by up to 14 days.
If it is not possible to contact the parties or if they do not wish to participate in EC, an EC certificate must be issued. If a settlement is not reached, either because the CO considers that settlement is not possible, or because the prescribed period expires, an EC certificate must be issued. The EC certificate will give the prospective claimant a unique reference number which they will have to include on their ET1 should they go on to present a claim.
The limitation period for claims in relevant proceedings to which the EC requirement applies is extended to take account of the EC period. The result is that a prospective claimant will always have at least one month to present their claim to the tribunal after EC has ended.
The extension of time is calculated in one of two ways.
The clock stops for the purposes of the limitation date during the period beginning with the day after Day A and ending with Day B:
Day A is the day on which the prospective claimant contacts ACAS by telephone, or the day on which their EC form is received by ACAS.
Day B is the day on which the prospective claimant receives the EC certificate. This will be the date on which ACAS sends the EC certificate by e-mail to the prospective claimant or, where it is not possible to use e-mail, the date on which it would be delivered in the ordinary course of post.
If the deadline to present the claim is more than one month after Day B, the deadline will be extended by the number of days in which the clock stopped during participation in EC.
However, where the ordinary limitation date falls in the period between Day A and one month after Day B, the deadline to present the claim will be extended to one month after Day B.
It is very early days for EC so we have yet to see what effect it will have on Tribunal claims.
For further information on the issues raised in this article, please contact Helen Wyatt on 020 7925 8083 or by email at email@example.com