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The efficiency of the tribunal system is to be boosted by the replacement of the existing voluntary pre-claim conciliation service provided by the Advisory Conciliation and Arbitration Service (ACAS) with, instead, a duty on the parties and ACAS to explore early conciliation (EC) of employment disputes before a claim is issued (Mandatory EC), effective from 6 April 2014.
Mandatory EC will cover ‘relevant proceedings’ which are the claims in which ACAS is currently empowered to conciliate. These include claims for unfair dismissal, certain rights in relation to families and pregnancy, redundancy, transfers and insolvency, discrimination and equal pay, trade unions and collective issues, time off work, the Working Time Regulations 1998, wages, contracts of employment, atypical working and certain other miscellaneous statutory rights.
Save for a few very limited types of claim, Mandatory EC will apply to all potential claimants. There are also certain limited proceedings known as ‘prescribed’ cases to which, despite falling into the category of ‘relevant proceedings’, Mandatory EC will not apply. These include proceedings where the prospective claimant is part of a group action in relation to cases arising out of the same facts, where another person in the action has submitted details of the claim to ACAS under Mandatory EC or where multiple claims are brought on the same Claim Form, only some of which are relevant proceedings.
Nor will Mandatory EC apply where a prospective respondent has asked ACAS to conciliate in the dispute, although as yet there is no provision in the draft regulations covering this. Where the prospective respondent approaches ACAS, the intention is that, unlike Mandatory EC, the clock will not be stopped on the limitation period in relation to any claim that a prospective claimant might seek to bring. Nor will there be any specified time period to try and resolve the dispute. If the prospective claimant is not interested in conciliation or if conciliation is unsuccessful, ACAS will issue an EC certificate and the prospective claimant is treated as having satisfied their obligation to contact ACAS and is free to progress with their claim. If however they subsequently decide to send an EC form to ACAS regarding the same dispute the steps set out below will apply as normal.
The key effects of Mandatory EC on bringing a tribunal claim are:
Claimants will have to include on their Claim Form a unique EC reference number provided by ACAS to show that they have satisfied the EC requirement, otherwise the claim will be rejected.
The clock will be stopped on limitation periods, starting on the date the prospective claimant contacts ACAS and ending on the date they receive (or are deemed to have received) an EC certificate from ACAS.
Mandatory EC comprises the following series of steps:
‘Prescribed information’ (namely, the information set out on the EC form which includes contact details of both prospective parties - but interestingly no information regarding the nature of the prospective claim) is sent by the prospective claimant to ACAS in the ‘prescribed manner’ (namely, by submitting the online version on the ACAS website or posting/delivering a hard copy to the address on the EC form).
An Early Conciliation Support Officer (ECSO) makes initial contact with the prospective claimant. If the prospective claimant wishes to proceed the ECSO passes the prospective claimant’s information to a conciliation officer. If despite reasonable attempts to do so the ECSO cannot contact the prospective claimant, or the prospective claimant does not wish to proceed with conciliation, the case will be closed and an EC certificate will be issued to the prospective claimant. This confirms that the obligation to contact ACAS has been satisfied and the prospective claimant is then free to progress with their claim.
If the prospective claimant has indicated to the ECSO that they do wish to explore conciliation, the conciliator contacts the prospective claimant (or their legal representative) in order to formally establish whether they wish to try and settle the dispute. The conciliator must then make reasonable attempts to contact the prospective respondent.
- If the prospective respondent is not willing to participate in conciliation, the prospective claimant will be informed and an EC certificate issued.
- Where both parties wish to explore conciliation, the conciliator has a ‘prescribed period’ of one calendar month from the date ACAS receives the prospective claimant’s completed EC form within which to try and promote settlement of the claim. With the agreement of the parties, ACAS may extend the conciliation period by up to two weeks where the conciliator believes that there is a reasonable prospect of achieving a settlement within that period.
If settlement is not reached within the original (or any extended) timeframe, the conciliation officer must issue a certificate confirming this. This may be either because the prescribed period expires or because at any point during the EC period the conciliation officer concludes that there is no reasonable prospect of settlement. Where settlement is reached ACAS will draw up an agreement and issue an EC certificate.
For more information, please contact Elizabeth Swinburn, Partner in our Employment team on 01223 451166 or click here to email Elizabeth. To learn more about our Employment services, click here.