Early Conciliation

27 January 2014

Stephen Musgrave

Under reforms introduced by the Enterprise and Regulatory Reform Act 2013, claimants wishing to bring proceedings in the employment tribunal from April will be required to attempt "Early Conciliation" (EC) through ACAS before they can do so. Currently ACAS can only initiate conciliation if requested by the parties.

Issues that EC will attempt to resolve

All discussions between the parties during the EC process will be on a 'without prejudice' basis, meaning that they cannot be later referred to in the tribunal. ACAS hopes that the introduction of EC will improve the efficiency of the tribunal system. EC will apply to claims relating to unfair dismissal, workplace discrimination, redundancy payments or disputes around selection procedures, deductions from wages, unpaid notice or holiday pay, and equal pay.

Mandatory 4-step procedure in outline

  1. Before lodging a claim at the tribunal, a prospective claimant must send certain information to ACAS. Almost all standard employment-related claims such as unfair dismissal, discrimination and unlawful deductions from wages must be referred for EC.
  2. ACAS will forward the information to an Early Conciliation Support Officer who, after making initial contact with the claimant, will pass this information on to a conciliator, who will be responsible for encouraging settlement.
  3. The officer must try to promote settlement within a month.
  4. If settlement is not achieved either because, in the conciliator's view, it is not possible or because the prescribed period expires, the conciliator must issue an Early Conciliation certificate. This certificate will contain a unique EC reference number which the claimant needs if they then submit an ET1 claim form to the employment tribunal.

Claimant's obligations

Claimants will be required to send 'prescribed information' in the 'prescribed manner' to ACAS, either on a hard copy form or in electronic format containing details such as the name, address, and contact details of the prospective claimant(s) and prospective respondent(s).

Despite lengthy consideration during the consultation process about the inclusion of details of the claimant's case and the dispute generally, which would likely aid ACAS in achieving conciliation, the government considers that certain prospective claimants, particularly those who are unrepresented or vulnerable, may find it difficult to understand the full nature of their dispute. Claimants will not therefore be required to provide such details and instead it is envisaged that this information will emerge in EC discussions. The process would be assisted, however, if employers are aware of the details of the case against them at an early stage.

'Relevant proceedings'

Only relevant proceedings must be referred to ACAS for EC. The consultation paper suggests that the only claims in which EC will not be required are those where a very short period exists for presenting a claim and which would make EC impracticable, such as an application for interim relief.

ACAS two-stage process

Stage 1: After ACAS is contacted by a claimant, an Early Conciliation Support Officer (ECSO) will phone the claimant to check the details provided and get basic information such as length of time employed, date of dismissal or incident complained of, and check the best time and method of contacting the claimant. The ECSO will also be able to explain and discuss any misunderstandings surrounding the claim, such as qualifying periods of employment. It is anticipated that following this stage a proportion of claimants will not pursue their claims further. If this happens, ACAS must still issue a certificate, in case the prospective claimant changes their mind and wishes to bring a claim, because the claimant will require a certificate to confirm compliance with the obligation to contact ACAS.  

Stage 2: For all other prospective claimants, the ECSO will pass relevant details onto the conciliator, who will then contact the prospective claimant to establish whether they wish to settle the dispute. If they do, regardless of whether the conciliator considers that the prospective claimant has a claim capable of being reviewed by a tribunal, the conciliator will be required to proceed with the conciliation. Decisions about whether the claim can be heard in an employment tribunal (for example, in a case where the limitation period has expired), are matters for the tribunal to decide. The conciliator will contact the prospective respondent to see if it is willing to discuss settlement. If the prospective respondent declines to participate, the conciliator will notify the prospective claimant and issue the certificate.

If both parties want to discuss settlement, the conciliator will have up to one calendar month from the date of receipt of the EC form in which to mediate a settlement. If at any point during this period the conciliator believes that there is no reasonable prospect of achieving a settlement, if discussions fail, or if either party chooses to withdraw from the process, the conciliator will end the process and issue the certificate.

Where the one month period is due to expire but the conciliator considers that there is a reasonable prospect of achieving settlement, the conciliator may, with agreement of both parties, extend the conciliation period by up to a further two weeks. This extension may only be made once. If settlement is still not reached at the end of this further period, a certificate will be issued.

In the event that no response is received from either party at any stage after the prospective claimant has submitted their EC form to ACAS, once reasonable attempts at contact have been made, a certificate will be issued. Neither party is then obliged to participate in EC.

Whilst ACAS anticipates receiving the majority of EC requests from prospective claimants, it is also possible for prospective respondents to request EC where they consider that there is an issue that may result in tribunal proceedings if it is not settled. The respondent should contact ACAS with details of the prospective claimant either by telephone, or by completing a respondent EC request form. If the prospective claimant declines the offer of conciliation, or conciliation is unsuccessful, the conciliator will issue a certificate to the claimant confirming that their obligation to contact ACAS has been satisfied, which will thus allow the claimant to lodge a claim with the employment tribunal.

It is not for the ECSO or for the conciliator to determine or comment on the merits of the case. They may only draw to the attention of the prospective claimant potential issues such as qualifying periods or time limits. 

Cases where EC procedure need not apply

The government's January 2013 EC consultation contain draft regulations. Regulation 3 sets out the circumstances in which a claimant need not comply with the requirement for EC, including:

  1. Where a prospective claimant is part of a multiple claim (one in which there are multiple claimants bringing claims against the same respondent), and the EC requirement has been complied with by somebody else instituting relevant proceedings in relation to the same matter.
  2. When proceedings which are not 'relevant proceedings' are brought as part of proceedings that are relevant proceedings.
  3. Where the employer (i.e. prospective respondent) has already contacted ACAS requesting the services of a conciliator.
  4. Where prospective claimants intend to bring a claim against the Security Service, the Secret Intelligence Service, or GCHQ.

Extension of time

A prospective claimant contacting ACAS for EC will 'stop the clock' on the tribunal time limit which will take effect from the day after the claimant contacts ACAS, ending with the day that they receive a certificate from ACAS (or are deemed to have received it under the Regulations).

However, if a prospective respondent contacts ACAS for EC, the tribunal time limit will continue to run. A prospective respondent contacting ACAS for EC will not prevent a prospective claimant from also contacting ACAS for EC, the result of which will be that the clock will stop on the tribunal time limit.

Where the prospective claimant contacts ACAS with less than one month to go before the expiry of the tribunal time limit, they will still have a whole month from the day they receive the certificate from ACAS in which to bring the claim.

Comment

It is open to debate how much EC will encourage the parties to settle at least during the EC process itself. Whilst ACAS has reported good success rates from existing voluntary conciliation, it may be the introduction of tribunal fees which makes prospective claimants more willing to settle during EC. Prospective respondents however may tactically refuse to settle during EC in order to find out how serious a claimant is about their claim.

EC does not require the claimant to provide full details of their claim on the EC form. If a respondent is unaware of the details of the case against it then it may be less likely to settle during EC unless and until it can fully quantify its potential liability.

Claimants may also use the EC process to artificially extend the tribunal time limit on their claim. ACAS does not believe that this will happen, but practitioners already believe otherwise.

Whilst EC ultimately aims to save time and money, if a claimant details claims in their ET1 which were not mentioned during the EC process, and for which an EC certificate was not granted, the claim may have to be referred once again to EC in order that a certificate may be issued in respect of these new claims.

EC is intended to reduce the number of cases brought before employment tribunals. Plainly, if it works as ACAS intends with both parties actively engaging in the process, it will certainly result in reduced costs to claimants who will avoid having to pay tribunal fees (and, if represented, legal fees), and to respondents who will save costs otherwise incurred in defending the claim. EC can also deliver outcomes not otherwise possible in an employment tribunal, such as an agreed reference or an apology, which might be preferable for both parties.