With effect from 6 May 2014, there is a change to the way employees can start proceedings against their employer in the Employment Tribunal. Claimants are first required to contact ACAS (Advisory Conciliation and Arbitration Service), who will attempt to promote a settlement. The time limit for bringing a claim will be put on hold while this early conciliation is attempted. Anyone who fails to engage in the process prior to issuing their claim will have their claim thrown out.
There are four steps to the new pre-claim conciliation procedure:
- Step 1: Before lodging a claim to institute “relevant proceedings”, a prospective claimant must send ACAS a completed EC form, either by post or e-mail, or telephone ACAS who will complete the form on their behalf. A separate form must be submitted for each potential respondent.
- Step 2: ACAS must then send a copy of the information to a conciliation officer.
- Step 3: The conciliation officer must try to promote a settlement within the “prescribed period” of one month (which can be extended by a further fourteen days).
- Step 4: If a settlement is not reached, either because one or both parties do not wish to start early conciliation, settlement is not possible in the conciliation officer’s view, or the prescribed period expires, the officer must issue an EC certificate to that effect. A claimant must insert the EC certificate number (or numbers if there is more than one respondent) onto their ET1 form to start their Tribunal claim or the claim will be rejected by the Employment Tribunal.
To be clear, there is no obligation on a claimant or a respondent to engage in the conciliation process.
This new duty together with the introduction of fees in the employment tribunal in July 2013 are likely to lead to a reduction in the number of claims brought before the Employment Tribunal. They may also dampen an employer’s enthusiasm to offer a settlement sum. Employees may be more willing to settle (and may therefore settle for a lower amount), in order to save the issue fee. Employers may show an increased tendency to “wait and see” whether the claimant is serious, and may therefore be less likely to settle (or less likely to offer anything other than a small sum in settlement) until after the fee has been paid.