Early Conciliation of Workplace Disputes
by Paul Sangha
The Enterprise and Regulatory Reform Act 2013 makes it compulsory for early conciliation to be undertaken by most prospective claimants before the instituting of Employment Tribunal proceedings. The new process will commence from the 6th April 2014.
Before a person presents a claim to an Employment Tribunal, they must provide to ACAS prescribed information unless they fall into one of a few exemptions. The providing of this information triggers Acas’ endeavours to promote a voluntary settlement between the parties during a period of 1 month, which can be extended by a conciliation officer. In cases where a settlement is not reached between the parties, Acas will issue a certificate to that effect to the prospective Claimant.
Employers are also able to request Early Conciliation through Acas and the Conciliation Officer would have the same statutory responsibility to endeavor to promote a settlement between the parties. Acas will only contact employers themselves if the prospective Claimant has indicated a desire to enter into Early Conciliation.
The prospective Claimant will only be able to commence Employment Tribunal proceedings once they have obtained the certificate from Acas.
The prospective Claimant will only be able to commence Employment Tribunal proceedings once they have obtained the certificate from Acas. The date that the certificate is received by the prospective Claimant is important for determining the “stop-the-clock” period when assessing the limitation period for their claims.
By making the early conciliation process compulsory in the vast majority of Employment Tribunal claims, the clear intention of the process is to seek early settlement of workplace disputes without the need for Tribunal claims to be commenced at all. The premise for this is that once claim forms are drafted and responded to, the parties’ positions become entrenched making it less likely for settlement to be reached.
Importantly, the decision as to whether to engage in the Early Conciliation process remains one for the parties involved to determine.
The provision for the issuing of a certificate ensures that an Employment Tribunal knows that parties have at least been through Acas before pursuing the claims further. It is unlikely that, when looking back from the Tribunal stage, the Early Conciliation process will have served any further useful purpose once the parties have gone through it (other than to generally reduce the number of claims pursued to an Employment Tribunal, if it succeeds in that aim). This is because it is not the purpose of the Acas officers to advise on or seek to narrow the issues between the parties. It might be, however, that they are able to discuss any queries or concerns that the prospective Claimant has regarding e.g. qualifying periods for bringing certain claims as part of obtaining the basic information regarding their claim, with the effect that the claims are not pursued further. However, this is unlikely to be the case in all but the most basic and clear-cut of cases, if at all.
It will remain to be seen whether the compulsory Early Conciliation process will result in a behavioural change and what effect it will have on the number of claims that are pursued to an Employment Tribunal.