Since 6 April 2014 it has become necessary for a claimant wishing to pursue a claim in the Employment Tribunal to apply to ACAS for Early Conciliation. A failure to do so will mean that the employment tribunal will automatically reject their claim.
Early Conciliation is triggered by completing a simple free online form and submitting it to ACAS, who will try to resolve the dispute without the need for further legal action. The regime has been introduced in an effort to save both employers and employees the cost and stress of facing an employment tribunal.
If both the claimant and employer agree, ACAS will have up to a whole calendar month to see if the conciliator can help to resolve the issue. That time can be extended by fourteen days if ACAS believe there is a reasonable prospect of a settlement being reached by the end of the extended period. However, if resolution cannot be agreed then a tribunal claim can still be made.
The timescales within which actions take place can be important. As a result, if as a claimant, you have completed an Early Conciliation form and sent this to ACAS, make a note of the time and date when this was done as this could be important later. As this system is new, the advice is to keep a copy of any receipts you get, and if you haven't had confirmation of receipt within 24 hours, resend the form until you eventually do get confirmation.
By the time that ACAS contacts the claimant, the claimant will be expected to be able to provide the conciliation officer with a reasonable indication of the nature of the claim and its potential value. Clearly this is an important conversation because the form itself does not allow a claimant to give ACAS any details of the claim and this conversation will be the first opportunity for the conciliator to find out what the dispute is about. It will not be helpful if that conversation is incomplete or if the claimant fails at that stage to identify all potential claims and/or heads of loss.
Any claimant who is being represented by a trade union or a solicitor will also have to inform ACAS at that stage as there is no room on the form for those details to be inserted.
Unrepresented claimants would be well advised to proceed cautiously. ACAS are only interested in securing an agreement between the claimant and the employer; they are not interested in the level of compensation (if any) that might be paid. It will be tempting for some claimants to think that ACAS is there to protect the claimant's interests, but that is not the case.
It is not yet clear whether the introduction of this new regime will have any real advantage for employers. It may help to prevent claims being issued without the employer discovering the facts and being given an opportunity to address the employee's concerns. It may also give employers the opportunity to bring to the attention of a prospective claimant the fact that he may not have grounds for pursing a claim, e.g. due to insufficient continuous service. No doubt ACAS will also tell potential claimants of the likely amount of the Tribunal fees they will incur if they have to issue the claim.
The outcome of the process will either be a settlement agreement (COT3) or the issuing by ACAS of an Early Conciliation certificate ("EC Certificate"). It is necessary for this certificate to be issued before the tribunal will accept a claim. ACAS will issue such a certificate if:
either party withdraws from the conciliation process;
time runs out;
- ACAS forms the view that no settlement is going to be achieved.
Whilst the normal three-month time limit for submitting a claim can be extended, it is always advisable to ensure that the process is started at least a month before the time limit runs out. Since there may be argument about how long it has taken, it will be necessary to ensure that good records are kept of the date on which the application for Early Conciliation was first submitted and the date the EC certificate was granted.