In an attempt to reduce the high number of Tribunal proceedings in the UK, new legislation came into force today making it mandatory for a claimant to notify ACAS if they are planning to make a claim to an Employment Tribunal.
Early Conciliation was announced as part of the Enterprise and Regulatory Reform Act 2013 and has been available since 6 April 2013. For Tribunal claims lodged on or after 6 May 2014, a Tribunal claim will not be accepted unless the complaint has been referred to ACAS in the first instance and then an Early Conciliation Certificate issued confirming that the requirements of Early Conciliation have been met.
Although now law for a claimant to notify ACAS of their intention to lodge a claim to an Employment Tribunal, it is still voluntary to come to an agreement outside the courts. If either party refuses to engage in the process the claimant will be issued with an Early Conciliation Certificate and they will be able to proceed with their claim to the Tribunal. There are certain exceptions when a claimant may not need to make an Early Conciliation Notification to ACAS, such as when a claimant is part of a larger group of claimants and someone within that group has already made a request relating to the same dispute.
For employers, the Early Conciliation process will give an indication as to the strengths and weaknesses of a case and an opportunity to resolve differences with a claimant in the early stages rather than at the Tribunal stage, saving time and money. With Early Conciliation lasting up to a month, and with the option to extend by an additional 14 days, providing both parties agree, this will have significant implications on the time limits for claimants to bring a claim. Employers will need to take into consideration that Early Conciliation involves a ‘stop the clock’ mechanism. So, where the time limit for bringing a claim would have expired during the Early Conciliation period or during the month after the Early Conciliation Certificate was issued the time limit will now be extended for a whole month and not just the period of Early Conciliation.
With no requirement for claimants to provide full details of their claim in order to enter into the Early Conciliation process, it has been reported that some employment law specialists have questioned whether employers will have sufficient information to assess the claimants claim and decide whether to come to an agreement outside the Tribunal. However, employers can use the process to their advantage to obtain more information about the case than would have been possible under the old system and decide whether they wish to settle outside the Tribunal or not.
Beware if you are an employer and refuse Early Conciliation as it is likely that you will be ordered to pay the fees for issuing and hearing the claim at Tribunal. With Tribunal fees soaring, it is predicted that employers are likely to engage in the Early Conciliation process. As commented by Richard Fox, Head of Employment Law at Kingsley Napley, ‘The idea is to reduce the number of costly litigations which go all the way. Earlier settlement may be the new name of the game for all but the most extreme cases”.
