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Catch The Worm: The New Early Conciliation Requirement

Following on from the introduction of the requirement to pay a fee to issue an Employment Tribunal claim, a new process will apply to any Employment Tribunal claims lodged on or after 6 May 2014.  It will now be a requirement (unless an exemption applies) for a claimant to have made an Early Conciliation notification to Acas prior to issuing their claim.  The process of Early Conciliation has been available voluntarily since 6 April 2014, and according to Acas the one month trial has been very successful.  So what should claimants know about the Early Conciliation requirements now that they have become compulsory?

An important point to note is that whilst the obligation to notify Acas is mandatory, the actual conciliation process is voluntary.  Although prospective claimants are required to contact Acas before making a tribunal claim, they only need to take part in discussing the matter and attempt to resolve it through Acas if they want to.  Either the claimant or the employer can stop the process at any time.  The process is free of charge and entirely confidential.  Anything discussed during the course of conciliation cannot be used by either party at a tribunal hearing.

Once the claimant has notified Acas that they wish to bring a claim, they will be offered the option of attempting to settle their potential claim prior to issuing it in the Employment Tribunal.  Entering into Early Conciliation will be entirely optional, and the claimant can at this point refuse to do so.  If the parties attempt to settle through Early Conciliation but ultimately cannot reach agreement, or if the claimant decides not to proceed with Early Conciliation, Acas will issue a Conciliation Certificate confirming that the notification requirement was met.  If a complaint is submitted to an Employment Tribunal before it has been referred to Acas and a conciliation certificate issued, the Employment Tribunal claim may not be accepted.     

There are a few exceptions to the requirement to notify Acas prior to submitting a claim.  These will generally apply where the potential claimant is one of a group of people making the same claim against the same employer, where one person has already made a request to Acas in respect of the same dispute, or in the case of very specific claims.

The process of notification is relatively straightforward.  The simplest way to do notify Acas is to complete their notification form, which requires only basis contact details for both parties.  Once this is received Acas will acknowledge the request and will contact the claimant to explain further what Early Conciliation is and the next steps.  If the claimant agrees that they want to proceed with Early Conciliation, Acas will then approach the employer to discuss the same.  The initial period of conciliation is intended to be up to one calendar month.  If after this period the matter is still not resolved, Acas will bring Early Conciliation to a close and the Claimant will be free to make a tribunal claim.

However, if Acas cannot contact the claimant over a reasonable period of time after the initial notification, or either party indicates they do not wish to proceed with Early Conciliation, Acas will close the case and issue their certificate.  It is only after the certificate has been received that a claim can be brought to the Employment Tribunal. 

The limitation period for claims (usual three months or six months depending on the nature of the claim) will be paused by the claimant contacting Acas regarding Early Conciliation.  The time limit will start to run again when the claimant receives their certificate acknowledging that Early Conciliation has finished.  However, Early Conciliation does not extend the time limit if it has already been missed prior to notifying Acas.  Claimants should therefore ensure that they notify Acas in good time prior to the expiry of the relevant limitation period.

If the parties proceed with Early Conciliation and successfully reach an agreement, the Conciliator will record the agreement on an Acas form (known as a COT3).  COT3s are effectively settlement agreements prepared by Acas, and are one of only two ways in which employees can waive their statutory rights (the other being under a Settlement Agreement).  Under the terms of a COT3, the claimant will agree to settle their claim and will be contractually bound not to bring a tribunal claim.

If the parties enter into Early Conciliation but cannot reach agreement in the time allocated, the Claimant will be free to bring a claim to an Employment Tribunal in the usual way.  However, this will not prevent the parties from continuing to discuss settlement after the period of Early Conciliation, either directly or through Acas.  Tribunal claims can be settled at any time prior to determination of the claim by a Judge.

 

This article was first published as part of our Employment Law Update - May 2014. 

This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.