A new horizon for Pre-Claim Conciliation

Mugni Islam-Choudhury considers the new rules on pre-claim conciliation which become compulsory from 6 May 2014.

 

On 6 April 2014 new rules come into force requiring employees intending on bringing a claim in the Employment Tribunal to first exhaust “pre-claim” conciliation with ACAS. On 6 May 2014 these rules become mandatory, so that an employee will not be entitled to bring a relevant claim at all, unless this process has been exhausted. Those with long memories will remember similar rules on a “fixed conciliation period” that were abolished along with the statutory dismissal and grievance procedures. The new Pre-Claim Conciliation process is quite different but has the same intent in reducing the number of contested Tribunal claims.  

 

 

The rules are contained in The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations SI: 2014/254, and they apply to “relevant proceedings” as set out in section 18(1) Employment Tribunals Act 1996, and therefore apply to the main tribunal claims such as unfair dismissal and discrimination. 

 

Under these rules, a prospective claimant must either present a completed early conciliation form containing prescribed information or contact ACAS by telephone with this information and ACAS will record the appropriate information. 

 

Once ACAS is in receipt of the prescribed information, it has one calendar month to seek to promote a settlement of the dispute between employer and employee. The period may be extended by up to 14 days if the ACAS conciliator is of the view that a settlement is achievable within that further period.

 

If settlement is reached that is all well and good. If it is not achieved within the conciliation period, then the conciliaor will issue a certificate to the Claimant evidencing that the Claimant has tried to conciliate and this has failed.  Only after receipt of the certificate will the employee, from 6 May 2014, be entitled to lodge a claim in the Employment Tribunal. A new Section 18A Employment Tribunals Act 1996, makes it mandatory to have a certificate before issuing a claim. 

 

However, there are some narrow exceptions, the most important of which are where a claim is part of a multiple claimant claim (such as equal pay litigation) for which special rules apply, or where there is a claim for interim relief as part of an unfair dismissal claim. 

 

 

For employees and employers alike, the opportunity to resolve disputes before resorting to litigation is encouraged. However, the parties cannot be forced to settle and this scheme does not prevent either side frustrating such efforts by failing to engage in negotiation. 

 

Furthermore, for the prospective claimant a failure to initiate conciliation in respect of “relevant proceedings” will prevent them from bringing a claim at all, and this adds to the already complicated (and controversial) process of Tribunal claim fees and remission. Added to this, the complications caused by Tribunal time limits to lodge a claim and arguments about whether a certificate covers the actual claims subsequently lodged in Tribunal will surely keep Employment Judges and the Employment Appeal Tribunal busy in the short term.   

 

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