Early conciliation – All you ever wanted to know

This month’s ENews focuses on Early Conciliation. Between 6 April and 5 May 2014, the scheme is optional, however it will become mandatory with effect from 6 May 2014.

Several important changes to employment law were introduced earlier this month. Early Conciliation is one of the changes that came into effect on 6 April 2014. There is now a duty on those wishing to bring a claim in the Employment Tribunal to first contact ACAS (the Advisory, Conciliation and Arbitration Service) who will attempt Early Conciliation of disputes before a claim is issued. This development arises out of a drive to reduce the strain on Employment Tribunals and the numbers of claims being brought.

1. What is Early Conciliation?

Previously ACAS were notified of a claim only once tribunal proceedings were issued. Now, all disputes in the workplace should be referred to ACAS before a Tribunal claim is presented. This is referred to as Early Conciliation.

For claims lodged after 6 May 2014 an employee will need to produce a certificate from ACAS showing that they have complied with their obligations to attempt Early Conciliation before they are able to issue a claim in the Employment Tribunal. There are a small number of exemptions, for example where cases involve multiple claimants.

Employers can also request Early Conciliation if they believe there is a workplace dispute that is likely to lead to tribunal proceedings.

2. How is a Request for Early Conciliation made?

An employee must present a completed Early Conciliation notification form to ACAS. Parties can access the Early Conciliation notification form through the ACAS website. The basic contact details of the employee and their employer should be completed and the form submitted online or posted. If a claim is subsequently made to the Employment Tribunal, the detail on the notification form must correspond to the claim form otherwise the claim may be rejected.

3. How does Early Conciliation work?

The mandatory Early Conciliation procedure can be broken down into the following steps:

Step 1: An employee must provide “prescribed information” in the “prescribed manner” to ACAS using the notification form (see above).

Step 2: An Early Conciliation Support Officer will make all reasonable attempts to contact the employee. The Early Conciliation Support Officer will also contact the employer with the express consent of the employee. The Early Conciliation Support Officer will take the employee’s details and outline the Early Conciliation process. This will take place by close of business on the day following receipt of the Early Conciliation form.

The Early Conciliation Support Officer will check that the employee wishes to proceed with the conciliation and if so, the employee’s information will be sent to a Conciliation Officer.

Step 3: Where the employee wishes to conciliate, the Conciliation Officer will contact the employee to formally establish whether they wish to settle the dispute. This should take place within two working days of ACAS receiving the form. The Conciliation Officer will be required to proceed regardless of whether they consider there to be a justifiable claim as jurisdiction points are a matter for the Employment Tribunal.

Where an employee has a legal representative, the Conciliation Officer will liaise directly with the representative.

The Conciliation Officer will make reasonable attempts to contact the employer. If they cannot be contacted or decline to participate the Early Conciliation certificate will be issued. If the employer is willing to participate in Early Conciliation, the Conciliation Officer must try to promote a settlement between the parties, within the “prescribed period”. The prescribed period is one calendar month from the date on which the employee’s form was received by ACAS. This can be extended once by up to 14 days.

Step 4: If at any point during the Early Conciliation period, or during any extension of that period, the Conciliation Officer concludes that settlement is not possible, an Early Conciliation certificate will be issued. This will occur if the parties cannot be contacted or do not wish to participate in Early Conciliation.

If the Early Conciliation period expires and no settlement is reached, an Early Conciliation certificate will be issued.

The certificate will generate a unique reference number, which must be included on an ET1 presented by the employee.

4. What happens if Early Conciliation is successful?

If a resolution is reached through ACAS the Conciliation Officer will record what has been agreed on a COT3. A COT3 is a formal agreement that is signed by both parties and is legally binding. This means that an employee is then unable to pursue a tribunal claim in respect of that particular complaint.

5. Does Early Conciliation affect the ordinary time limits for issuing a Tribunal claim?

The ordinary time limit for issuing a claim in the Employment Tribunal is three months less one-day from the date of dismissal for an Unfair Dismissal claim and from the date of the detriment for a discrimination or whistle-blowing claim.

These ordinary time limits have been extended in order to allow sufficient time for Early Conciliation to take place.

In such cases, once an employee contacts ACAS this will ‘stop the clock’ on the time limits for presenting a claim in the tribunal. The clock can be stopped for up to one calendar month and can be extended by a further 14 days if more time is needed. If negotiations fail, the clock starts running again once the employee receives the certificate following completion of Early Conciliation.

In cases where an employee is contacted by a Conciliation Officer as a result of the employer’s request, the limitation period is not extended.

6. How is the extension of time calculated?

There are two significant days for these purposes:

Day A is the day the employee contacts ACAS or the Early Conciliation notification is received.

Day B is the day on which the employee receives the Early Conciliation certificate.

a) If the original limitation period falls between Day A and one month after Day B.

If the original limitation period falls between Day A and one month after Day B, the new time limit for presenting a claim will be one month after Day B.

Example

C is dismissed on 31 May. The original limitation period expires on 30 August. Early Conciliation is entered into on 15 August (Day A) but this fails on 5 September (Day B). The original limitation period falls within the period beginning with Day A and ends a month after Day B. Therefore the new limitation period will be 5 October.

b) If the original limitation period falls more than one month after Day B.

If the original time limit falls more than one month after Day B, then time will be extended by a period equivalent to the Early Conciliation period. The length of the Early Conciliation period is calculated from the day after Day A up to and including Day B.

Example

C is dismissed on 31 May. The original limitation period expires on 30 August. Early Conciliation is entered into on 15 June (Day A) but this fails after 20 days on 5 July (Day B). The limitation period does not fall within a period, which began with Day A and ended a month after Day B, i.e. from 15 June to 5 August. The Early Conciliation period took 20 days. Therefore 20 days will be added to the original limitation period of 30 August. The new time limit is therefore 19 September.

For further information about Early Conciliation contact:

Alexandra Gess
alexandra.gess@rlb-law.com
020 7227 6700

Sejal Raja
sejal.raja@rlb-law.com
020 7227 7410

April 2014

© RadcliffesLeBrasseur


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.