The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (the 'Regulations') have recently been published, confirming that Early Conciliation ('EC') will become a mandatory step in employment litigation for all claims issued on or after 6 May 2014. Whilst EC will not be a legal requirement until this date, there will be transitional provisions in place between 6 April and 5 May 2014 which will allow claimants to opt to use EC. All of the main types of workplace dispute will be covered.
The Regulations will require all prospective claimants to contact Acas - the Government's Advisory, Conciliation and Arbitration Service – as the next step after internal workplace procedures have failed; and so attempt arbitration before the submission of any employment tribunal claim. Acas' involvement will be free of charge, and is intended to avoid the need to pursue costly litigation in the majority of cases.
The background to EC
Acas has provided an optional Pre-Claim Conciliation service since 2009. In its 2013/2013 annual report, Acas stated that 74% of cases which went through the conciliation process in 2010-11 were resolved without a subsequent claim to an Employment Tribunal. EC is intended to build on this success.
Acas' Chief Executive Anne Sharp explained the intended function of the new regime in November 2013:
The service is not there to make judgments on whether a tribunal claim is merited or not – that’s a judicial function. So whether the claim is about discrimination, victimisation or unfair dismissal our conciliators are happy to deal with it, so long as both parties are happy to have the conversation. But you can’t force people to talk to each other and reach a settlement. Sometimes one party or the other will absolutely, resolutely want the matter to be heard in front of a judge and that’s what the judges and tribunals are there for.
It is against this background that the concept of EC aims to encourage the early settlement of claims. This is part of the package of employment law reforms introduced by the Government with the specified aims of reducing the burden on businesses and making the tribunal system more efficient (along with the introduction of tribunal fees in summer 2013, for instance, as previously discussed [ET fees: Part Three].
How the EC process will work
EC will essentially involve a four-step process:
Step 1 The claimant sends the prescribed Acas EC form to Acas either via their website or by post. This form only requires details of the prospective claimant and respondent; no detail of the dispute(s) is needed at this stage.
Step 2 The Early Conciliation Support Officer (ECSO) will then make reasonable attempts to contact the prospective claimant. With their express consent, the ECSO then passes the file over to a conciliation officer for Step 3.
Step 3 The appointed conciliation officer tries to contact the prospective respondent to promote a settlement. If both parties wish to conciliate, the officer then has one month in which to promote conciliation via the EC process. During this period, the clock is stopped for the purposes of the limitation period applicable to the claimant's Tribunal claim.
With both parties' consent Acas may extend the EC period, on one occasion, by up to 14 days where they think there is a reasonable prospect of achieving a settlement within that extended period.
Step 4 If settlement is not reached at any stage, either because the conciliation officer considers that settlement is not possible, or because the prescribed period expires, the conciliation officer will issue an EC certificate to the prospective claimant to that effect, which confirms that the claimant complied with their obligation to contact Acas. The prospective claimant will then be able to submit a Tribunal claim.
If settlement has been reached an agreement is drawn up between the parties in the normal way, and the EC certificate issued to confirm.
The prescribed EC certificate will contain the parties' contact details; the date the EC form was received by Acas; the date of issue of the EC certificate and a unique Acas reference number. After 6 May prospective claimants will be required to enter this reference number on Tribunal claim forms to demonstrate that they have complied with their EC duties.
The interaction with ET fees
Whilst in principle, anything which encourages early settlement should be seen as a good thing, it will be interesting to see how EC interacts with the new Tribunal fees system. In some cases, for instance, the employer might feel inclined to hold off entering into conciliation, and wait to see if the claimant is committed enough to pay the relevant claim issue fee before agreeing to enter into settlement discussions. If this is the approach taken, EC may not have quite the impact that is hoped.
However, in practice, it is likely that employers will reach a view on each individual case as to whether the claimant is serious (as well as the merits of the claim). In cases where the defence may be suspect, it may well be prudent for a respondent to engage in EC rather than deal with the cost and hassle of having to file an ET3. Although it might not have the same impact as the introduction of tribunal fees appears to be doing (with some regions reporting reductions in volume of claims by well over 50%), it will be interesting to see the effect of the new regime in further reducing the number of claims brought.
With thanks to Kathryn Pickard, Paralegal at Farrer & Co, for contributing to this article.