Early Conciliation

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We are starting to hear reports of cases before the Employment Tribunal where the Claimant has failed to comply with Early Conciliation either because they have wrongly stated that an exemption applies or as in the case of Thomas v Nationwide Building Society because the Claimant did not comply until after the claim was presented.

Early conciliation through ACAS became mandatory from May 2014. After this time all Claimants wishing to institute relevant proceedings (for example unfair dismissal) must first contact ACAS to initiate early conciliation. Failure to comply will mean that the claim may be struck out as the Tribunal would not have jurisdiction to hear the complaints if they related to relevant proceedings.

In the Thomas case, the Claimant said she was exempt when completing the ET1 and the claim was rejected by the Tribunal. She then complied with early conciliation and as she had now complied, she asked for the Tribunal to reconsider its decision to reject the claim. The Tribunal Judge agreed to reconsider its decision as it was a defect that was capable of being remedied. The Claimant did not have to resubmit her claim but the date of submission became the date that she rectified the defect and got her certificate. The problem was that her claim was now out of time and the Tribunal will in due course need to consider this issue.

As a Respondent to a claim it is therefore worth checking as part of your response whether early conciliation has been complied with as the Tribunal office may not catch all defects and reject them. This can then be a preliminary argument before the substantive case is heard.

Written by
Edward Aston
4th December 2014