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Early conciliation of employment claims

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Patrick Stewart The Government has long been concerned about the £74 million annual cost of running the employment tribunals and the Employment Appeal Tribunal. In attempt to discourage potentially frivolous claims, it introduced fees with effect from 29th July 2013 for issuing a claim and for proceeding to a hearing. There are discounts and exemptions for low earners, and the fee is repaid to successful claimants. However, the number of claims lodged during the last quarter of 2013 (9,801) was 75% lower than in the third quarter of 2013, and 79% lower than in the last quarter of 2012.

With effect from 6th April 2014, tribunal claims have been automatically referred to ACAS for voluntary early conciliation, giving the parties an additional month in which to try to resolve the dispute before the claim can proceed in the tribunal. As from 6th May 2014, early conciliation will become mandatory. Before most employment claims can be issued, the claimant will need to produce to the tribunal a certificate from ACAS (EC certificate) confirming he has complied with his obligation to attempt early conciliation.

The Early Conciliation Rules of Procedure establish a four step procedure:

1. Claimant sends ACAS a completed Early Conciliation form

Rule 1 of the Early Conciliation Rules of Procedure requires a prospective claimant to submit a completed Early Conciliation form (EC form) to ACAS, either on-line via the ACAS website, by post or by hand delivery. The form must state the claimant’s name, address, contact numbers and email address, and the employer’s name, address and telephone number, but does not need to give any information about the nature of the claim.

2. ECSO contacts the prospective claimant

The completed EC form is passed to an Early Conciliation Support Officer (ECSO), who will attempt to telephone the claimant, normally by close of business on the following day, to check the details on the form and other basic information (such as length of service, date of dismissal etc), outline the conciliation process and clarify areas of possible misunderstanding, such as qualifying periods.

With the claimant’s express agreement, the ECSO will then try to contact the employer.

If he is unable to contact either party, or if the claimant indicates he does not wish to proceed with conciliation, the ECSO must conclude that conciliation is not possible, and issue the EC certificate.

3. Conciliation officer attempts to promote settlement

Assuming the claimant has confirmed his willingness to proceed, the ECSO passes the file to an ACAS Conciliator, who contacts the claimant, normally within two working days after ACAS has received the EC form, to reconfirm formally that he wishes to attempt conciliation. If so, the Conciliator is required to proceed, regardless of whether he considers there to be a justifiable claim, as jurisdiction points are for the Employment Tribunal to decide.

If the claimant is legally represented, the Conciliator will liaise with the representative rather than the claimant.

The Conciliator will make reasonable attempts to contact the employer. If this is not possible, or if the employer declines the offer of early conciliation, the Conciliator will issue the EC certificate and the claimant can proceed to the Tribunal.

If both parties agree to conciliate, the Conciliator must attempt to promote a settlement within one calendar month from ACAS’ receipt of the completed EC form. This period can be extended by up to two weeks if the Conciliator considers there is a reasonable prospect of achieving settlement by the end of the extended period and both parties agree to the extension.

4. Dealing with the outcome of conciliation

If the conciliation period (including any extension) expires without settlement having been reached, or if the Conciliation Officer concludes at any point during this period that settlement is not possible, ACAS will issue the EC certificate.

If a settlement is achieved, ACAS will draw up an agreement recording its terms, and will issue an EC certificate so that the claimant can proceed to the Tribunal on any claims which have not been settled or in the event that the settlement fails.

In most cases, the prospective claimant will be unable to proceed to the Tribunal without an EC Certificate.

Time Limits

In order to allow sufficient time for early conciliation to take place, changes have been made to the deadlines for an employee to bring an Employment Tribunal claim once the Early Conciliation process has begun. Generally the time limit for bringing claims at the Employment Tribunal is three calendar months but, under the Early Conciliation procedure, the clock will stop when the claimant lodges the EC form until ACAS issues the EC Certificate and, if the normal time limit for bringing the claim would expire less than one month after the EC Certificate is issued, it is extended until the end of that period.

For further information, contact patrick.stewart@twmsolicitors.com

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