Early conciliation step mandatory before ET claim can proceed

The Government's attempt to increase the efficiency of the tribunal service has led to the introduction of a compulsory early conciliation scheme through ACAS. The scheme will be effective from 6 April 2014 and compulsory from 6 May 2014 (with transitional provisions operating between April and May). From 6 May, subject to limited exceptions, an employment tribunal claim cannot be commenced without first attempting early conciliation via ACAS. The scheme's framework has been introduced by the Enterprise and Regulatory Reform Act 2013. A four step procedure has been established:

  • Step 1: the prospective claimant must send information to ACAS in the 'prescribed manner'.
  • Step 2: an early conciliation support officer will then make initial contact with the claimant and refer the case to a conciliator.
  • Step 3: the conciliation officer must try to promote settlement within the 'prescribed period' of one month (subject to a maximum two week extension).
  • Step 4: if at any stage the conciliation officer concludes it is not possible to reach settlement or the time has expired a certificate is issued. This can include a situation where ACAS is unable to make contact with the claimant or respondent after making 'reasonable attempts' to do so. The claimant is unable to commence most claims (with limited exceptions) without the certificate.

So that claimants will not be penalised by taking time to conciliate the rules on calculating the time limit for issuing tribunal claims (normally three months) will be changed in two ways. Firstly the time limit clock will stop running during the conciliation period. Secondly if the time limit (as extended by this new rule) would still expire less than a month after the end of the period a claimant will have a full month from the date they receive the certificate from ACAS in which to lodge a claim. The combination of these two rules means that if claimants approach ACAS right at the end of the original limitation period they can have up to two and a half months longer to bring a claim (i.e. the maximum conciliation period of six weeks plus a further month after it ends).

Time will tell how effective the scheme will be.  Do you remember the statutory dispute resolution procedures ? The extension of time provisions may well give rise to satellite
litigation on whether time limits have been met.

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