Anna Hawksworth of Carillion Advice Services details the early concilitation consultation:
In the Resolving Workplace Disputes consultation the Government set out their proposal yesterday for an Early Conciliation (EC) process. The EC process will require most prospective claimants to send the details of their claim to ACAS before they are able to lodge the claim in the employment tribunal. This would enable ACAS to offer the parties an opportunity to resolve their dispute without tribunal involvement, with the intention of saving costs, improving employment relations and business productivity, and saving money for the Government by reducing demand on Her Majesty’s Courts and Tribunals Service.
The current consultation, commencing 17 January 2013, focuses on the implementation of the EC process, with the following proposals:
- The EC process should commence with the claimant completing and submitting a basic form to ACAS, which should not require the claimant to indicate the nature of their dispute. The consultation seeks views on the content of the form and the prospective claimant not having to state the nature of the dispute.
- The only jurisdictions where the EC requirement should not apply are those where there is a very short period for making a claim, (e.g. an application for interim relief), or where settlement would not be appropriate (e.g. an appeal against an improvement or prohibition notice). The consultation seeks views on any other jurisdictions where EC should not be required.
- Some prospective claimants should be exempt from the requirement to make an EC request, e.g. those involved in multiple claims.
- Prospective claimants will be encouraged to present their EC request online.
- Prospective claimants will remain responsible for presenting their claim to the employment tribunal in time, though ACAS will inform the parties of the limitation period as part of their advisory role.
- When a duly completed EC form is received by ACAS the limitation period will be suspended to allow conciliation to take place.
- The first stage contact (on the day following receipt of the form) will involve an EC Support Officer (rather than an experienced conciliation officer) telephoning the prospective claimant to obtain information and explain the EC process. This approach is to save costs. The consultation seeks views on whether this is the right way forward.
- For those prospective claimants difficult to contact it is proposed that ACAS make ‘reasonable attempts’ to contact, but that this should not continue indefinitely, and if ACAS remains unable to contact the prospective claimant a certificate should be issued to confirm that the claimant has complied with their obligation to contact ACAS. The consultation seeks views on what constitutes ‘reasonable attempts’.
- Similarly, where the prospective claimant decides that a claim cannot be brought following discussion with the EC Support Officer a certificate will be issued.
- The second stage of contact would involve contact with a conciliation officer, within two working days of receipt of the form.
- The conciliator will contact the prospective respondent within two working days.
- If the respondent declines EC a certificate will be issued to the prospective claimant – the consultation seeks views on the approach when contacting prospective respondents, in terms of time and attempts.
- Where both parties agree, ACAS will have up to one month to conciliate, with the powers to cease conciliation early where there is no reasonable prospect of settlement and or extend by 2 weeks where settlement is likely.
- ACAS will only contact the prospective respondent if the prospective claimant agrees – the consultation seeks views on whether this is the right approach.
- If EC is successful a legally binding settlement would be signed by both parties and a certificate will be issued to the prospective claimant.
- The certificate will state the date the EC request was received, the date the certificate was issued and the how it was issued, i.e. whether electronically or by post. The consultation seeks views on any other information to be included on the certificate.
- Prospective respondents may also request EC, in which circumstance there will be no ‘stop the clock’ provision and no specified period of time in which conciliation must take place. If the prospective claimant declines EC a certificate will be issued. The consultation seeks views on this approach.
- If EC is unsuccessful the prospective claimant may bring a claim in the tribunal. The claimant must quote the EC reference number on the ET1, otherwise the claim will be dismissed.
The consultation will close on 15 February 2013.