Pre- claim conciliation has always been available to the parties of an employment dispute via ACAS (Advisory, Conciliation and Arbitration Service). Darryll Thomas, Associate and employment specialist at The Wilkes Partnership, looks at recent changes to the employment tribunal process and the introduction of compulsory pre claim conciliation via ACAS.
Until recently pre claim conciliation was predominantly a voluntary process and the parties typically used the services of ACAS after a claim had been brought to help reach settlement. However, in a further step to limit the burden on the Employment Tribunal system, a new system involving pre claim conciliation via ACAS was introduced on 6 April 2014. Following a transitional period, when the system was optional only, it is now mandatory as of 06 May 2014.
This means that anyone launching an employment tribunal claim against their employer from 6 May 2014 must engage in a process involving ACAS before lodging their claim with the employment tribunal. Otherwise, they will not be permitted to bring their claim. Also, as detailed in our July 2013 update, employees must also pay a fee in order to bring tribunal claims.
How does ACAS pre claim conciliation work?
The current system is very much centred round conciliation taking place after an employment tribunal claim is issued. The new system will see a shift in emphasis.
When submitting an Employment Tribunal claim from 06 May 2014 it will be a mandatory requirement to include with it an Early Conciliation certificate (EC Certificate) otherwise the claim will be rejected.
Such a certificate can only be issued by an ACAS officer following completion of the pre claim conciliation process.
However the requirements placed upon a Claimant are not quite as the title suggests. Essentially there is no actual duty to actively engage in conciliation. In order to obtain an EC certificate a Claimant merely needs to provide certain basic information to ACAS such as their contact details by email or post (alternatively, the Claimant can telephone ACAS). There is no requirement to provide any details whatsoever of the prospective claim or claims. Additionally, upon being contacted by ACAS a Claimant can refuse to engage in conciliation at which point the ACAS officer will issue the EC Certificate. Likewise, the prospective employer is at liberty to refuse to engage in the process also.
Oddly there is no prejudice or sanction imposed against a party who refuses to engage in conciliation in the subsequent employment tribunal proceedings.
Where the parties agree to engage in conciliation, it will be set for an initial four weeks fixed period, which can be extended for a further two weeks by mutual consent of the parties.
Important – impact on time limits
During the ACAS conciliation period – that is, from the day ACAS is contacted by the Claimant (Day A) to the day upon which the Claimant receives the EC Certificate (Day B) – the clock will stop ticking on the standard time limit for bringing the claim in question. The time limit will need to be reassessed to take account of that period. This aspect in itself could cause more problems than it solves.
The complications do not end there. The rules further stipulate that where a time limit would have expired (but for the above provisions) during the period beginning with Day A and ending one month after Day B, the time limit will expire at the end of that period instead. Different rules may also apply if the employee sues more than one Respondent, as depending on when the EC Certificate was issued in respect of each of the Respondents, the time limits may be different for each.
For example, if an employee was dismissed on 23 January, they contact ACAS on 29 March and receive an EC Certificate on 10 April, the expiry of the time limit for presenting their unfair dismissal claim will be 10 May.
If the same employee also has a discrimination claim against their employer (first Respondent) and against say their manager (second Respondent), and the EC Certificate is not issued until 15 April in respect of the second Respondent, the expiry of the time limit for the discrimination claim against the second Respondent will be 15 May.
Is this development good news?
Darryll Thomas comments: “This is not the first time the Government has sought to reduce the burden on the tribunal system by introducing legislation requiring the parties to take steps to resolve employment disputes before they reach the tribunal door. For instance the Employment Act 2002 introduced a variety of statutory procedures to encourage parties to resolve disputes prior to the issuing of a tribunal claim. However these ill fated regulations soon spawned far more satellite litigation than could have possibly been contemplated and were soon repealed.
It would appear that the changes in question are far more straightforward than their predecessor, however any legislation that involves the recalculation by the parties of the standard limitation period is almost certainly going to cause complications, not least practical. Further, with the lack of sanctions for refusing to engage in conciliation, it is likely that in the majority of cases these provisions will be seen as nothing more than an administrative nuisance.”
It remains to be seen whether parties to employment disputes will see ACAS as a valuable medium through which to informally resolve matters and avoid the need to issue formal tribunal proceedings.