It is now some time since Early Conciliation (EC) became mandatory on 6th May 2014.
This process was introduced for all prospective claimants intending to issue a Tribunal claim. The intention was to make the Tribunal system more efficient by reducing the number of cases going before Tribunals, getting both parties around the table to explore the possibility of a resolution. This was to be achieved by imposing a duty upon both the parties to litigation and ACAS to attempt early conciliation before a Tribunal claim can be issued.
ACAS describes the main advantages of the process in the following terms.
- It is voluntary – You are legally required to contact ACAS before making a tribunal claim. However, neither party is obliged to take part in conciliation and can stop whenever they wish.
- You are in control – Agreements are decided by the parties, not imposed by a tribunal. Agreed outcomes can include things not available at an employment tribunal, such as an employment reference or an apology.
- It informs – Parties can get a clearer idea of the strengths and weaknesses of their case, and can explore the options for resolving their differences.
- It saves time and money – ACAS conciliation is free, and often is concluded by a few telephone calls. If parties can settle their differences, this will avoid the time, expense, risk and stress of making or defending a tribunal claim, or, if a claim has been made, of going to the tribunal hearing.
- It is impartial and independent – ACAS doesn’t represent either the employee or the employer and it is not part of the tribunal system.
- It is confidential – Anything you tell ACAS can only be discussed with the other party if you agree that it will be helpful in trying to settle the case. Settlement discussions cannot be used by either party at a tribunal hearing.
- It can restore trust – if the claimant is still employed it increases the chance of avoiding a permanent breakdown of the employment relationship, if that is what both sides want to achieve.
If early conciliation is…
If a resolution is achieved the conciliator will record what has been agreed on an ACAS settlement form (COT3). Both parties will be then be required to sign this as a formal record of the agreement. The document is a legally binding enforceable contract, which means that:
- the claimant will not be able to make a future tribunal claim relating to this issue; and
- any tribunal claim already lodged it will be closed.
If the parties are unable to reach a settlement, or if the EC period expires, an EC certificate is issued. This provides the prospective claimant with a unique reference number which they then include on their ET1 to confirm that the process has been followed. An ET1 will be rejected by the Tribunal if it doesn’t contain one of the following:
- an EC number;
- confirmation that the claim does not institute relevant proceedings; or
- confirmation that an EC exemption applies.
The requirement to comply with the EC process applies in all but a few very specific circumstances. Early conciliation applies to most employment disputes, including:
- claims for unfair dismissal;
- breach of contract;
- unlawful deductions from wages;
- equal pay;
- protection from detriment; and
- rights to time off work.
The conciliator will:
- talk through the issues with both sides to try to achieve a solution;
- explain the conciliation process;
- explain the way employment tribunals operate, and what they take into account when deciding a case;
- discuss the options open to the parties, including arbitration;
- help the parties to understand how the other side views the case, and explore how it might be resolved without a hearing; and
- talk through any proposals two sides have for a settlement.
The conciliator will not:
- make a judgement on the case, or the likely outcome of a hearing;
- advise whether or not to accept any offers of settlement;
- advise on the effect of early conciliation on time limits for a claim or calculate the new time limit;
- act as a representative, take sides, or help prepare a case.
Claims with a very short limitation period where EC would not be practical, for example an application for interim relief, are not included in “relevant proceedings”.
In the following circumstances prospective claimants wishing to issue relevant proceedings will not be required to make a request for EC:
- where A wishes to bring proceedings on the same claim form as B or join a claim already presented by another claimant;
- where proceedings that are not relevant proceedings are brought on the same claim form;
- where the respondent has contacted ACAS first in relation to a dispute;
- where an unfair dismissal claim is accompanied by a claim for interim relief;
- proceedings against the Security Service, the Secret Intelligence Service or the Government Communications Headquarters.