Early conciliation on the horizon

On the 6th April 2014, there will be another big shift in employment law procedure as the new compulsory early conciliation through ACAS kicks off.  Historically, if an employee wanted to bring a claim against their employer they would complete the relevant ET1 form and lodge this with the Tribunal.  Changes were made last July 2013 to this process with the introduction of a fee.  Now Claimants must pay this or apply for remission before their claim is accepted.  If it is rejected for non-payment of a fee then the clock is still ticking for limitation purposes.

The Ministry of Justice recently published its tribunal statistics for October – December 2013 which show a 79% drop in the number of employment claims entering the system compared to that same period for 2012.  Early conciliation may reduce this further.

The changes take effect on 6th April 2014 but really impact on claims presented to the Tribunal on or after 6th May 2014. In order to present a claim after this time, the Claimant must contact ACAS with prescribed information to complete the early conciliation form.  Claimants can contact ACAS by submitting the form on the ACAS website, by completing the form and posting it to the address on the form or by telephoning ACAS on the dedicated number on the form giving their name and address and the prospective respondent’s name and address.

On receipt of the form or call, ACAS have a period of one calendar month to try to promote a settlement between the two prospective parties.  This time period can be extended once for a further 14 days.  ACAS will make reasonable attempts to contact the prospective claimant and seek their consent to contact the prospective respondent.  If ACAS cannot make contact with either party then it must conclude settlement is not possible and issue an early conciliation certificate.  Such a certificate must also be issued at the end of the time period.  A Claimant will need the certificate before being able to present their claim to the Employment Tribunal.

This will also have an impact on timescales as the limitation period freezes at the point that the Claimant enters into the process so in effect they have longer to bring claims against their employer and possibly save up that issue fee.

Employers will be impacted in a number of ways.  Firstly, the service is free so it is likely to be used by any disgruntled ex-employee regardless of whether they intend to proceed with a claim.  This could result in the employer receiving more ACAS calls.  Secondly, your danger period was the three month limitation period and a little bit extra on top to allow the Tribunal to receive the last minute claim and process it.  Get past this without a claim and you can feel more confident.  Now this window has extended by potentially another month and you may not even know it.  Therefore the period of replacing an employee who had been dismissed may equally need to be extended, not to mention the need to retain the key witnesses in any claim and remember exactly what happened.  This places a greater reliance on notes and record keeping which may present a problem for some employers.

It remains to be seen if early conciliation results in a drop in Tribunal claims or indeed if it contributes anything to the process rather than additional burdens on both sides.  Most employers may want to see the colour of the Claimant’s money for the tribunal fees before they enter into any sort of meaningful discussions.

Written by
Edward Aston
1st April 2014

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