Early Conciliation: new rules in employment disputes

Posted by : | 28th Feb 2014 | Employment law for HR Directors

Early Conciliation new rules in employment disputesFrom 6 April 2014 onwards, a new system of Early Conciliation (EC) requires employees to take some compulsory steps before they can make a claim against an employer.  It is mandatory in almost every case (there are a few very limited exceptions).

The Early Conciliation system requires employees who believe they have an Employment Tribunal (ET) case to inform Acas before their case can proceed through an ET.

The new system should not deter employers from attempting to resolve issues informally or through mediation.

 

The Early Conciliation system requires employees who believe they have an Employment Tribunal (ET) case to inform Acas before their case can proceed through an ET.

Early Conciliation, the new procedure in employment disputes.

This is how it works. An employee will be required to notify Acas before issuing a claim.

Step 1: The employee must send “prescribed information” in the “prescribed manner” to Acas.  Read here Acas’ explanation of the process http://www.acas.org.uk/index.aspx?articleid=4028, and their flowchart for employees considering a claim.

To quote Acas web site ” The quickest and simplest way to notify Acas [before issuing a claim] is online using the form on our website. If you cannot access the internet, contact Acas’ Early Conciliation support on 0300 123 11 22.”

Step 2: After an Acas “early conciliation support officer” has made initial contact with the employee and confirmed that they wish to proceed, the employee’s information is sent on to a conciliation officer.

Step 3: The conciliation officer then tries to promote a settlement within a “prescribed period”,  using a bit of shuttle diplomacy between  the employer and employee.

Step 4: If no settlement is reached, either because the conciliation officer thinks that settlement is not possible, or because the prescribed period expires, the conciliation officer issues a certificate saying this.
The employee will be unable to pursue most tribunal claims without this certificate. Why? Because the certificate carries a number which the employee needs in order to register his/her ET claim.

Limitation periods will be extended to take account of the “prescribed period”. When the employee notifies Acas this will “stop-the-clock” for 1 calendar month on the 3 month ET claim limitation period.

If necessary, the employee or employer should check with their legal services insurance provider before contacting Acas. Whilst notifying Acas before pursuing a claim is compulsory, whether making or responding to a claim, it is worth speaking to an insurer first to be absolutely sure there can be no question of having acted in a way that invalidates the policy.

Can an employer request Early Conciliation?

Employers responding to a claim will have the opportunity to request Early Conciliation if they consider that the issue that might lead to tribunal proceedings if it is not settled.

The employer will need to contact Acas with the details of the employee making a claim.  A “respondent EC” request form will be made available for the employer to complete and submit online.

Where Early Conciliation is requested by the employer:

  • There will be no “stop-the-clock” process for the usual 3 month limitation period after leaving employment when an employee can make a claim
  • There will be no specified time period in which Early Conciliation must take place.

If , having contacted Acas, the employee declines the offer of conciliation, or if conciliation is unsuccessful, the conciliation officer will issue an EC certificate confirming that the employees obligation to contact Acas has been satisfied. This will make it clear to the tribunal that there is no suspension of the usual 3 month limitation period and the employee can to lodge the claim

However, if the employee does then send an early conciliation form to Acas about the same dispute, this will trigger the “stop-the-clock” provisions, and Acas will manage the  process as for any other claimant making contact with them.

Here are the steps fro the new process

Step 1: employee sends completed EC form to Acas

The employee provides the following information on the EC form:

  • Employees Name, Address, Contact numbers (telephone and mobile) and e-mail address.
  • Employer’s name, address and telephone number.

Employees will not have to provide any information on the nature of their claim(s) on the EC form

The Employee must send the completed EC form to Acas by either:

  • Submitting the online version on the Acas website, or
  • Posting a hard copy to the address on the EC form.

Step 2: Early Conciliation Support Officer (ECSO) then contacts the employee

  • Acas will make reasonable attempts to contact the employee and, with the employee’s express consent, then try to contact their employer.
  • If Acas is unable to contact either the employee or the employer its conclude that settlement is not possible.

In practice, an employee’s completed EC form will be passed to an ECSO who will try to make telephone contact with the employee. The purpose of this will be to enable the ECSO to:

  • Check the details supplied by the employee, obtain basic information such as the length of employment, the date of dismissal or incident complained of, the best time and means for further contact and whether the employer is still trading.
  • Outline the conciliation process and to check whether the employee requires any reasonable adjustments (for example, provision of an interpreter).
  • Explain and discuss any misunderstandings surrounding the prospective claim (for example, qualifying periods).

The ECSO will make an initial call to the employee by close of business on the day following receipt of the EC form. If the employee wishes to proceed the ECSO will pass the case to the conciliator.

It is accepted that some employees will be difficult to contact. What amounts to “reasonable attempts” to contact the employee is to be left to Acas discretion, rather than specifying a maximum number of attempts and/or a specified period of time for the ECSO to attempt to contact the employee.

Where the ECSO is unable to contact the employee, or the employee indicates that they do not wish to proceed with conciliation, the case will be closed and a certificate confirming that the employee has complied with their obligation to contact Acas will be issued. The employee will then be able to present a claim to the tribunal.

Step 3: the conciliation officer attempts to broker a settlement between employee and employer

The conciliator contacts the employee

Where the employee wishes to conciliate, the ECSO will pass the file to a conciliator who will then contact the employee and formally establish whether the employee wishes to attempt to settle the dispute.

Where the employee has a legal representative, the conciliator will liaise with them rather than directly with the employee.

The conciliator then contacts the employee

The conciliator will make reasonable attempts to contact the employer to see if they are willing to participate in conciliation. If they are unable to make contact an EC certificate will be issued.

If the conciliator makes contact with the employer but they decline EC, the conciliator will notify the employee and issue an EC certificate.

Where both parties wish to conciliate: conciliation period

Where both parties have agreed to participate in the conciliation process, the conciliator will have one calendar month from the date of receipt by Acas of the employee’s completed EC form to promote a settlement between them.

The conciliation period may be extended by Acas for up to two weeks where the conciliator considers that there is a reasonable prospect of achieving a settlement by the end of the extended period and both parties agree to the extension.

Pre-claim conciliation: potential outcomes in unfair dismissal claims

In the case of a former employee bringing a claim for unfair dismissal there is specific provision for a conciliation officer to be able to promote reinstatement or re-engagement of the employee “on terms appearing to the conciliation officer to be equitable” with either the employer (or a successor or associated employer) as a means of settlement. The conciliation officer can promote settlement by way of compensation only where either:

  • The former employee does not wish to be reinstated or re-engaged.
  • These forms of settlement are not practicable.

Step 4: dealing with the outcome of conciliation

What happens when Early Conciliation fails?

  • If at any point during the EC period, or during any extension of that period, the conciliation officer concludes that settlement is not possible, Acas will issue an EC certificate.
  • If the EC period, including any extension of that period, expires without settlement having been reached, Acas will issue an EC certificate.

Where the parties reach a settlement

Where the parties agree to settle, Acas will draw up an agreement recording the settlement and may issue an EC certificate.

The reasoning for an EC certificate to be issued where settlement had been reached is two-fold:

  • If only some of the matters in dispute are settled, the employee will need an EC certificate to be able to bring a tribunal claim for the issues that remain in dispute.
  • If the settlement “fails” (presumably this means that the settlement is not concluded), the employee will be able to satisfy the tribunal that they had complied with their obligation to contact Acas.

There is no specific provision for what will happen in the event that the parties reach a settlement. This perhaps reflects that the conciliation officer will need to take a view on a case-by-case basis whether it is necessary to issue an EC certificate. For example, it may be apparent that the employee has settled a claim for outstanding wages on the termination of their employment but that the question of whether their dismissal was fair remains unresolved. The employee will still need the reference number from the certificate to commence their unfair dismissal claim despite having settled one aspect of their complaint.

Early conciliation certificate

When an EC certificate will be issued

Once a prospective claimant has submitted a completed EC form, the following are the points in the EC process which will trigger the issue of an EC certificate:

  • The ECSO is unable to contact the employee.
  • The employee tells the ECSO that they are unwilling to conciliate.
  • The conciliator is unable to contact the employer.
  • The employer tells the conciliator that they are unwilling to conciliate.
  • The parties agree to conciliate but during the conciliation period either party withdraws from the process.
  • At any point during a conciliation period (and any extension) where the conciliator considers that there is no reasonable prospect of achieving a settlement.
  • The conciliation period (as extended, if applicable) expires without a settlement having been reached.
  • The position when the parties reach a settlement is unclear. Presumably where a COT3 has settled all claims an EC certificate will not be issued (to avoid misleading employees into believing that they can issue proceedings). However, it appears reasonable to assume that Acas will issue an EC Certificate where a COT3 settles only part of a dispute. In such cases the employee will be able to bring a claim regarding unresolved issues where they choose to do so.

Information in the EC certificate

An EC certificate will contain:

  • The employee’s name and address.
  • The employee’s name and address.
  • The date on which Acas received the EC form or was telephoned by the employee.
  • The unique reference number given by Acas to the EC form.
  • The date of issue of the EC certificate, which will be the date on which Acas sends the certificate, and a statement indicating the method by which the certificate is being sent.

Who the certificate will be sent to

Acas will send a copy of the EC certificate to the employee and, if Acas has had contact with the employer during the EC period, to the employer.

How the certificate will be sent

Acas will send the EC certificate by email and, where this is not possible, by post.

The certificate will be deemed to be received:

  • If it is sent by email, on the day it is sent.
  • If it is sent by post, on the day on which it would be delivered in the ordinary course of the post.

The remainder of the employee’s limitation period will start running on the day following receipt of the certificate.

Bringing a tribunal claim

The ET rules will be amended so that employees will be required to include evidence, in the form of the unique EC reference number given to them by Acas, on their ET1 form to demonstrate that they have satisfied the EC requirement. Where the EC requirement applies and the employee fails to include the EC reference number on their ET1 form, the tribunal will reject their claim.

For more information about Acas please see their website www.acas.org.uk and if you would like any further information about this article please contact Abigail.

 

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