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Another hurdle for employment tribunal claimants? - How early conciliation may impact your business

2 April 2014

Recent changes to the process for bringing Employment Tribunal claims could be criticised as making it more difficult for employees. Fees for bringing a claim and attending a hearing in the Employment Tribunal were introduced in July 2013.

New rules will come into force on 6 April 2014 (becoming mandatory from 6 May 2014), which will require disputes to be notified to the Advisory, Conciliation and Arbitration Service (Acas) Early Conciliation (EC) service before a Tribunal claim can be made.

Conciliation is a means of attempting to resolve employment disputes without recourse to the Tribunal or courts. The parties speak to an impartial conciliator with the aims of then better understanding each other's case and facilitating constructive settlement discussions.

At present, an employee who wants to make a claim against their employer (or former employer) can submit a claim directly to the Tribunal. Either party can voluntarily approach Acas, before or after the claim is issued, to use its free conciliation service. Acas claims that employers can save on average £2,700 by using conciliation to settle a dispute before a Tribunal claim is lodged.

From 6 May 2014, before submitting a Tribunal claim, an employee must contact the Acas EC service. Only a few claimants will be exempt from this obligation, for example, where there are multiple claimants and another claimant has already notified Acas.

Notwithstanding that such contact is mandatory, conciliation itself is not mandatory. Neither the employee nor employer is under any obligation to agree to conciliate and the Tribunal is not permitted to draw any inferences from either party's refusal to use the conciliation process or failing to agree a settlement.

Briefly, the EC process requires:

Step 1: The employee must submit an EC Form to Acas online, by post or by telephone. The name and address of the employee and employer must be given but there is no requirement to state the nature of the dispute.

Step 2: Acas will contact the employee and ask whether they want to conciliate their dispute. If necessary Acas will provide further information about the conciliation process.

Step 3: Assuming the employee wants to proceed with conciliation, the matter will be passed to a conciliation officer, who will then contact the employee to obtain basic details of the dispute.

The conciliation officer must then make reasonable attempts to contact the employer and must try to promote settlement within one month of receipt of the completed EC form. This period may only be extended once and by a maximum of 14 days.

The conciliation officer's duty applies regardless of whether the employee's claim has little merit. Conciliation officers are not able to provide any comment on the merits of either party's case as views as to the strengths and weaknesses of the legal claims and evidence are matters for the Tribunal to determine.

The EC service is intended to be confidential and information provided in EC may not be used as evidence in Tribunal proceedings unless the person who communicated it to the conciliation officer gives their consent.

Step 4: If either the employee or the employer does not want to use conciliation, Acas is unable to contact either party or settlement is not reached within the time frame, the conciliation officer will issue an EC certificate. This certificate confirms that the employee has complied with EC requirements. The employee will need to include the unique reference number from the EC certificate on their Tribunal claim form.

Effect on time limits

Submission of a dispute to conciliation effectively "stops the clock running" in relation to any time period in which an employee must bring a claim. For example, an employee generally has three months from the date of termination of employment to bring an unfair dismissal claim.

The time period between the employee contacting Acas and the date on which he or she receives the EC certificate does not count towards the three month time limit. At the least, the employee will have one month following receipt of the EC certificate to file a claim.

How it may impact your business?

The impact of the conciliation process on Tribunal claims will be seen over time. EC has potential benefit of being a low cost and relatively quick method of resolving workplace disputes. Additionally, more creative settlements can be achieved through EC than with the remedies available in the employment Tribunal. For example, an employee claimant may simply want an agreed form of reference.

Employers who anticipate a dispute can request EC from Acas, before the employee does so. However, employers may also be inclined to wait and see if the employee is prepared to actually bring a claim, and pay the Tribunal fees, before agreeing to conciliate.

Acas's free post-claim conciliation service will still be available.

EC may also be better suited to simple financial disputes, rather than more complex claims such as whistleblowing or discrimination. In more complicated disputes, involving difficult issues of law or fundamental disagreement about the facts, the conciliation process may be hampered by the inability of Acas to reach a view about the merits of either party's case.

There is also scope for satellite litigation. For example, if an employee has an EC reference and lodges a Tribunal claim, but not all aspects of the claim were mentioned in EC, then it may be referred back for EC, causing further disruption and delay and disputes over limitation periods.

This article was written by Kirsti Laird and Clare Davis.

For more information, please contact Kirsti on +44 (0)20 7427 6411 or kirsti.laird@crsblaw.com