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Consultation on proposals for compulsory early conciliation

28th February 2013

Amongst the proposed changes to employment law and procedures made by the Government is the introduction of a compulsory requirement for most claimants to the Employment Tribunal to seek consultation through ACAS before being able to proceed with their claims in the Employment Tribunal.

The Government considers that early conciliation should apply to all claims except those that have a very short time limit for commencing the claim in the Employment Tribunal (such as for interim relief) or where settlement would not be appropriate. In practice the proposals will cover the vast majority of claims that can be submitted to the Employment Tribunal.

The Government is now consulting over the details of the proposals for the implementation and operation of the consultation.

Under the proposed scheme a prospective claimant to the Employment Tribunal must personally contact ACAS on a set form. The initial contact cannot be through a legal representative. However, the claimant can later refer the conciliator to their legal representative should they so wish.

Perhaps rather oddly, the form does not require the prospective claimant to provide any information about the details of the nature of their claim. Instead they only need to provide basic information, such as name, address, and contact details. ACAS will then record receipt of the form and then the relevant time limit for the submission of the Tribunal claim (3 months in the case of unfair dismissal, for example) will be suspended in order to allow the conciliation to proceed. ACAS will be required to notify the parties of the relevant time limit for any claim, but ultimately the claimant will still be responsible for ensuring that he/she presents their claim to the Employment Tribunal within the time limit.

There are some situations in which the prospective claimant will not be required to submit a form for early conciliation to ACAS before submitting a claim to the Employment Tribunal. Those situations include where they are part of a multiple claim  (ie where there are other employees bringing linked claims who have already brought their details to the attention of ACAS), and where the Respondent (ie the employer or former employer) has asked ACAS to conciliate in the dispute. It should be noted that in this situation the time limit on presenting the claim will NOT be suspended, so to be on the safe side the prospective  claimant can also submit a request for ealry conciliation to ACAS).

Once received ACAS is to be required to telephone a prospective claimant, and outline the concilation process to be followed, and discuss any misunderstandings over the prospective claim. If contact cannot be made with the prospective claimant the ACAS worker will close the case and issue a certificate confirming that the prospective claimant had met his/her obligations, and the claim will then be able to proceed in the Employment Tribunal. If the prospective claimant wishes to participate in early conciliation the matter will be passed to a conciliator, who will try to contact the prospective respondent (ie the employer or former employer) to see if they are willing to engage in discussion. A prospective respondent can decline to be involved in early conciliation. If however BOTH parties agree to conciliation the conciliator will have up to a calendarto bring about a settlement.

If attempts to conciliate fail, or either party withdraws from the process the conciliator will end the process and issue a certificate allowing the prospective claimant to issue the claim in the Employment Tribunal. The conciliation period may be extended if at one month into the process it appears to the conciliator that a settlement can still be achieved- the extension will be limited to a two weeks period.

If successful both parties will sign a binding settlement document and no claim can then be brought to the Employment Tribunal about the issues in dispute.

The conciliator issues a certificate to confirm that the claimant has complied with the obligations. The certificate enables the claimant to proceed with a claim in the Employment Tribunal. The Government is proposing that the claimant will have to insert the details of a unique reference number given by ACAS on his/her Tribunal form in order to demonstrate to the Employment Tribunal that he/she has complied with his/her obligations and is entitled to proceed with the claim in the Employment Tribunal.

It remains to be seen how successful these proposals will be. The previous Government introduced, and then repealed, mandatory internal disciplinary and grievance procedures. Ultimately those proposals failed to produce a permanent change of culture in workplaces, and failed to produce a sustained reduction on claims going to the Employment Tribunal. Success in these proposals will, as always, depend on the co-operation of individuals and employers, it will also largely depend on the availability of resources to ACAS and conciliators to support the  changes.It can be guaranteed that wokplace problems will not go away simply with the introduction of these proposals, and it cannot force the parties to reach settlements of claims. It should also be noted that even if prospective claimants want to settle, not all potential respondents want to settle claims (which would normally involve making some payment to the individual concerned).

If you need further help or advice in relation to the issues raised in this article please do not hesitate to contact us at Hallett Employment Law Services Ltd.






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