Effective 6 May 2014, it is a legal requirement for prospective claimants to follow a process of early conciliation through the UK Advisory Conciliation and Arbitration Service (Acas) before they may issue a claim in the employment tribunal.
Background
The early conciliation provisions of the Enterprise and Regulatory Reform Act 2013 reflect the government's attempt to encourage discussions and, ultimately, settlement between the parties to a potential employment tribunal claim without the need to commence legal proceedings.
Some limited exceptions to this obligation include cases where another claimant has complied with the process in respect of the same matter or where a claim form contains issues that are not "relevant proceedings" (e.g., claims against certain government agencies, such as the Secret Intelligence Service). Even if proceedings are exempt, a claimant may still request early conciliation. Similarly, a prospective respondent can request early conciliation regarding a matter which, if not settled, may give rise to proceedings against the respondent.
The early conciliation process
The early conciliation process requires claimants to notify Acas before issuing a claim to the employment tribunal. The tribunal will not accept a claim unless Acas has confirmed that this process has been followed. Once notified, Acas will contact the claimant to see if the individual is interested in attempting early conciliation with the employer. If so, Acas aims to contact the employer the following working day to initiate the process, which can last up to one month (unless the parties agree to a further 14-day extension).
If Acas cannot contact the claimant, either party does not wish to commence conciliation discussions, or the early conciliation period ends, Acas will issue an early conciliation certificate confirming that the early conciliation requirements have been met. This certificate is then sent to the employment tribunal and the claimant may issue a claim as before.
Key points to note
The obligation on the claimant is merely to notify Acas of a potential claim and not to commence a conciliation process with the employer. As such, neither party is required to enter into discussions.
Although the statutory limitation period in which a claimant may bring a claim in the employment tribunal is three or six months (depending on the complaint), the clock stops running as soon as the claimant notifies Acas of the potential claim. The clock restarts once Acas issues the certificate, meaning that, effectively, the limitation period can be extended for a maximum of six weeks.
What it means for employers
If a claimant wants to proceed with early conciliation, Acas will contact employers to initiate the process. It is therefore possible that the first indication of a potential claim is via Acas rather than the employment tribunal. Accordingly, businesses should consider who should communicate with Acas in such cases and if they would like to appoint representatives to act on their behalf.
Employers are not legally required to participate in early conciliation. However, because early conciliation will be suggested to the employer only if the claimant is open to settlement, employers should consider this option before a claim is issued in the employment tribunal.
Because the early conciliation process can stay the limitation period, employers can no longer rely on the statutory time limits, as potential claimants may use the early conciliation process as an attempt to buy themselves more time to prepare their claims.
If the early conciliation process proves successful, it could eliminate for both parties the time and expense of following the employment tribunal process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
