07 March 2014 #Employment
ACAS early conciliation for tribunal claims comes into force on 6 April 2014. It will be mandatory from 6 May 2014, meaning that from that date, all employment tribunal claims, with very few exceptions, must first go through ACAS conciliation before the claim can proceed.
Transitional provisions cover the period between 6 April and 5 May 2014 during which the new early conciliation procedure will be available to prospective claimants, although not mandatory.The prohibition on issuing proceedings without an early conciliation certificate may apply if a prospective claimant commences early conciliation in the period beginning 6 April 2014 and ending on 5 May 2014, and presents a tribunal claim on or before 5 May 2014.
Few employers are aware that ACAS are already able to conciliate on claims before they are submitted to an employment tribunal. The ACAS pre-claim conciliation service (PCC) was expanded in April 2009 and is available for any type of workplace dispute including unfair dismissal, discrimination or equal pay.
However, the service has been rarely used, in large part it seems because of the short three month limitation period that applies to tribunal claims.
The current arrangements for PCC will cease when mandatory early conciliation is introduced. However, ACAS has suggested that it will continue to use its dispute resolution services to try to assist either party who wants to try to resolve a dispute, even before an early conciliation request is made.
April 2014: early conciliation (EC): a new mandatory procedure
Step 1: The prospective claimant must send “prescribed information” in the “prescribed manner” to ACAS. The prescribed manner is online, by post and also by telephone. Prospective claimants will be able to telephone ACAS who will then fill in the form.The information that the individual will be required to provide to ACAS is the employee`s name and address and the prospective respondent`s name and address. The individual will not be required to provide details about the dispute.
ACAS will make reasonable attempts to contact the prospective claimant and, only with the prospective claimant`s express consent, then try to contact the prospective respondent.
A completed EC form will be passed to an Early Conciliation Conciliation Officer (ECSO) who will try to make telephone contact with the prospective claimant. The purpose of this will be to enable the ECSO to:
If the prospective claimant wishes to proceed the ECSO will pass the case to the conciliator
It is accepted that some prospective claimants will be difficult to contact. What amounts to "reasonable attempts" to contact the prospective claimant is to be left to ACAS discretion.
Where the ECSO is unable to contact the prospective claimant, or the prospective claimant indicates that they do not wish to proceed with conciliation, a certificate confirming that the prospective claimant has complied with their obligation to contact ACAS will be issued. The prospective claimant will then be able to present a claim to the tribunal.
Step 3: Where the prospective claimant wishes to conciliate, the ECSO will pass the file to a conciliator who will then contact the prospective claimant and formally establish whether the prospective claimant wishes to attempt to settle the dispute.
It is understood that where the prospective claimant wants to conciliate, the conciliator will still be required to proceed regardless of whether or not they consider there to be a valid claim (for example, in a case where the limitation period appears to have expired). Decisions on jurisdiction are matters for the tribunal, not ACAS.
Where both parties have agreed to participate in the conciliation process, the conciliator will have one calendar month from the date of receipt by ACAS of the prospective claimant`s completed EC form to promote a settlement between them.
The conciliation period may be extended by ACAS for up to two weeks where the conciliator considers that there is a reasonable prospect of achieving a settlement by the end of the extended period and both parties agree to the extension
Step 4: If a settlement is not reached, either because the conciliation officer considers that settlement is not possible, or because the prescribed period expires, the conciliation officer must issue a certificate to that effect. The prospective claimant will be unable to pursue most tribunal claims without this certificate.
During the period from when the prospective claimant contacts ACAS to when they receive an EC certificate from ACAS, time limits are suspended by the "stop the clock" provisions.
The effect of this is that where the normal time limit for bringing the claim expires during the one month early conciliation period or the period of one month after receipt (or deemed receipt) of the EC certificate, the time limit shall instead expire one month after the receipt or deemed receipt of the EC certificate from ACAS. In other words, the claimant gets a minimum of one month to file a claim once the clock starts to run again.
When a prospective respondent requests EC
Where EC is requested by the prospective respondent there will be no “stop-the-clock” provision with regard to the limitation period applicable to any claim the prospective claimant might bring. Also, there will be no specified period of time in which EC must take place.
University of South Wales Work Experience Student