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Obligatory Early Conciliation Scheme comes into force

30th April 2014
On the 6th April 2014 new rules came into force requiring employees intending on bringing a claim in the Employment Tribunal to first use the "early conciliation" service operated through ACAS. It will be mandatory for those lodging claims on or after the 6th May 2014 to have completed the early conciliation process and have obtained the early conciliation certificate from ACAS before they can proceed with their claim in the Tribunal.

The underlying aim is good, which is to see if the parties to a dispute can resolve their problems and reach some form of solution without having to go to the Employment Tribunal. Neither party can be forced to co-operate with the conciliation process, but in order to proceed to the Tribunal the claimant will need to first obtain the conciliation certificate from ACAS.

The process will be required before most types of claim can commence in the Tribunal. However, there are some exceptions., such as where the individual has applied for interim relief, or where the claim is being pursued against the security services, or where in a multiple claim a different claimant has already used the early conciliation process and obtained a conciliation certificate the latter claimant will not also have to go through the early conciliation process (this will only apply if the cases are essentially the same and are part of a group of multiple claims arising from the same dispute).

The individual will first have to provide ACAS with information including the names of themselves and their employer, but is not at this point required to give the details of the claim. This step can done using the online form, sending the form through the Post, or by telephoning ACAS and giving that information over the phone. ACAS is requried to record the date that this information is received. This date is crucial when determining how the limitation period for any claim to the Employment Tribunal will be effected by the process. Once this has happened an ACAS conciliator will be requried to contact the individual to gather information about the complaint and start the conciliation process. If however the individual cannot be contacted, or the employer refuses to co-operate with the process then the ACAS conciliator will  be expected to issue the early conciliation certificate (effectively indicating that the process has come to an end as there is no prospect of conciliation working in these circumstances).

If the individual agrees the ACAS conciliator will try to contact the employer. Then if both parties are willing to do so there will be a period of conciliation of up to one month (which can be extended by a further 14 days if there is a prospect of agreement at the end of the month).

The ACAS conciliation officer is expected to explain the way that the Tribunal works, discuss options, explain the position of each party to the other party, and toexplore options for resolution. In addition the conciliator will relay proposals made between the parties. The conciliator cannot make a judgement on the claims or the prospects of success of the claims, and cannot take sides.

If at any point within the month of conciliation the conciliator has concluded that there are no realistic prospects of success in conciliation the conciliator can issue the conciliation certificate.

On issuing a claim in the Employment Tribunal the individual will be required to provide the early concilation reference number, which is on the early conciliation certificate. The Tribunal will reject the claim if that number is not provided, or the form does not confirm that one of the exemptions applies to the claim. So,the early conciliation reference number will be essential in the majority of claims going to the Tribunal.

The process can effectively give up to another month for the individual to submit a claim to the Employment Tribunal. However, the extension may be shorter if there is no conciliation (such as when the individual or employer says that they have no wish to conciliate, or they cannot be contacted by ACAS).

It is quite likely that this will result in confusion over timelimits for many individuals. The success of the scheme may be significantly limited by the fact that the ACAS conciliator cannot force either side to conciliate and cannot advice a party to accept or reject any proposal, and cannot give advice on the likely outcome of the claim if fought in the Tribunal.So, while the principle of conciliation is good, we have reservations on the likely success rate of the scheme. In any event, it appears clear that any party involved in this process really should get their own legal advice so that they can make a proper informed assessment of any proposal and any suggested solution, and to evaluate the chances of success in any potential litigation in the Employment Tribunal.

If you need advice on the issues raised in this article please do not hesitate to contact Hallett Employment Law Services Ltd.
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