03 April 2014

Bound to conciliate

From 6 April 2014 employers are going to be affected by a significant change to the process for starting a tribunal claim in the form of mandatory pre-claim conciliation through ACAS.

Whilst the responsibility for referring the matter to ACAS falls squarely on the employee (employers can start the process if they wish, but have nothing to lose if they don’t) the practical implications of the new process will affect employer and employee alike.

The essence of the scheme, which comes into effect on 6 April 2014 and will be compulsory for all claims started on or after 6 May 2014, is a set of four steps:

  • Step 1. Before lodging a claim the employee must send ACAS either by phone or by submitting a form online or by post, details of the names and addresses of the employer and the employee.
  • Step 2. ACAS must then send a copy of the information to a conciliation officer.
  • Step 3. The officer must try to promote a settlement within a ‘prescribed period‘of one month.
  • Step 4. If a settlement is not reached, (because either party refuses, or ‘settlement is not possible’ or the prescribed period expires), the officer must issue a certificate to that effect.

The employee will not be able to start a tribunal claim without this certificate. The certificate will contain a unique registration number, which will have to be entered on the tribunal claim form.

On the face of it this is a procedure that will have little impact on the employer. ACAS will only contact the employer if the employee consents and so the employer may not even become involved in an attempt at conciliation. There are no penalties for an employer that does not want to conciliate.

However the new rules are not without their downside for employers, in particular in relation to time limits for bringing a claim to the tribunal. During the conciliation period the clock stops for the purposes of the time limit, adding up to a month to the normal time limit for bringing a claim. In some case that extension might be even longer, as the rules state that an employee will always have at least a month after the end of the conciliation period to bring a claim. If the employee does not want ACAS to contact the employer, the employer will not necessarily know that the employee is contemplating a claim and might therefore find that a claim is commenced some time after the three month time limit to which everyone is accustomed. That could cause problems for employers defending cases some months after the events about which the employee is complaining.

Again it is too early to give any clear prediction about the impact of this reform. Recent statistics from the Ministry of Justice show a sharp drop in the number of cases started in the employment tribunal since the introduction of fees in July last year. Mandatory pre-claim conciliation may well enhance this effect. But commentators have expressed scepticism about how keen employers will be to conciliate claims before employees have shown their commitment by paying the fee, arguably undermining the objective of the reforms.


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