Early Conciliation

The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) have been published, confirming that Early Conciliation will come into force on 6 April 2014.

In short, under the new rules, Claimants will need to contact ACAS before issuing an Employment Tribunal claim, albeit there is no obligation to actually engage in conciliation. ACAS will however offer early conciliation to try and resolve disputes quickly and cost effectively.

Early conciliation will work by ACAS, on receiving a request for early conciliation, phoning the person making the claim within one working day. During that call ACAS will clarify the details on the application form, gather basic information on the dispute and provide additional detail on early conciliation. Once this stage has been completed the case will be passed to a Conciliator who will aim to make contact with both parties within one working day of receiving the case. The Conciliator will try to promote settlement within one month. If settlement is not achieved either because, in the Conciliator’s view, it is not possible or because the prescribed period expires, the Conciliator will issue an Early Conciliation Certificate. This Certificate will contain a unique early conciliation reference number which the Claimant will need in order to be able to submit an ET1 claim form to the Employment Tribunal.

Contacting ACAS for early conciliation will “stop the clock” for the Claimant in relation to the Employment Tribunal time limits. The clock will stop on the day after the Claimant contacts ACAS, and will end on the day that they receive a certificate from ACAS (or are deemed to have received it under the Regulations).

If a prospective Respondent contacts ACAS for early conciliation the Employment Tribunal time limit will continue to run. However, the fact that a Respondent has contacted ACAS will not prevent a prospective Claimant from also contacting ACAS for early conciliation (the result of which will be that the clock will stop on the Employment Tribunal time limit).

One drawback with early conciliation may be that, whilst early conciliation ultimately aims to save time and money, this may not be achieved if a Claimant details claims in their ET1 which were not mentioned during the early conciliation process. In such circumstances, the claim may have to be referred once again to early conciliation in order that a certificate may be issued in respect of these new claims – thus arguably not saving time or money.

It remains to be seen how much early conciliation will encourage the parties to settle at least during the early conciliation process itself. It may indeed be the introduction of Employment Tribunal fees which makes Claimants more willing to settle during early conciliation, rather than early conciliation itself.  Prospective Respondents may however tactically refuse to settle during early conciliation in order to find out how serious an individual is about their claim. Claimants may also use the early conciliation process to artificially extend the Employment Tribunal time limit on their claim.