Pre-Employment Tribunal Conciliation Explained

Wake Smith Solicitors 26 May 2015

As part of a package of employment law reforms, pre-employment tribunal ACAS Conciliation came into effect in April last year and became mandatory for all relevant claims in May 2014. Here is a checklist of frequently asked questions to help with an overview of the scheme. Q. What is ACAS? A. The Advisory Conciliation and Arbitration Service (ACAS) is an independent government funded organisation mandated to help with employment disputes. Employment lawyers regularly involve ACAS in Tribunal cases in any event, as necessary, as one of the many tools for settlement. Q. What are the new rules? A.  Very briefly both employers and employees can request the services of ACAS if they think that an employee may bring a claim against them, or if an employee is thinking of bringing a claim against an employer. There are a number of "relevant proceedings" where mandatory Early Conciliation (EC) applies. These include:-

  • Unfair dismissal;
  • Breach of contract;
  • Unlawful deduction from wages;
  • Discrimination and equal pay;
  • Protection from detriment; and
  • Rights to time off.

Q. Does it cover every type of claim? A.  No, the majority of claims are covered but there are some exceptions. Q. How does it work in practice? A.  Very importantly "prescribed information" must be provided by the employee either on an EC form or by telephoning ACAS. ACAS will then contact the employee to explain the procedure and check agreement and understanding of the procedure and will then contact the employer. There is a "prescribed period" of one calendar month from the date upon which initial contact with ACAS is made to try to settle the case. ACAS can extend this by up to 14 days. There are various situations in which ACAS can issue an EC Certificate early if a settlement is not possible. If a settlement is not possible or the period expires the EC Certificate must be issued with a unique reference number to be included on the Employment Tribunal claim (ET1). Q. I know there are time limits to bring claims. What happens about those? A.  Provided the types of claims are covered by the procedure and the procedure is correctly completed, time limits are extended by the early conciliation period. Q. Are there any pitfalls to be aware of? A.  Yes, plenty!

  • An employee might not have taken legal advice on the correct Respondent to a claim. For example they might think they just have a claim against their employer when they may have claims against some of their co-workers, or they might not be clear about who their employer is.
  • Many claims are covered by the mandatory procedure but not all.
  • Where it is the employer who has contacted ACAS, the time limits "clock" does not stop and the employee may be out of time for bringing a claim if they have not had advice on this.
  • The employee may not supply the correct information and run the risk of having an EC form rejected. If they are close to the time limit this could mean they are out of time.
  • The fact that part of a claim such as failure to page wages could be settled but not, for example an unfair dismissal claim can lead to some procedural problems because the employee will still need an EC Certificate to continue with the unfair dismissal claim.

Some claims come within the mandatory EC procedure but do not come within the procedure which extends time which could be a trap for a number of employees. There are two separate provisions relating to "stopping the clock". There has already been some litigation about the way that this works and there are some potential traps there. Although the reforms have been in place for a year, practical experience of how they are working is still relatively limited. The indications are that, as part of the overall package of employment law reforms, which included promoting settlement agreements under the ACAS Code on Settlement Agreements, and tribunal fees, the early conciliation rules have substantially reduced the number of Employment Tribunal claims. For further information contact Holly Dobson on 0114 266 6660 or [email protected]

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