The new rules
The Advisory Conciliation and Arbitration Service (ACAS) has introduced an Early Conciliation service with effect from 6 April 2014. The Early Conciliation service has been introduced with the aim of trying to resolve disputes before they end up in an Employment Tribunal.
There will be a transitional period, from 6 April to 5 May 2014, during which the Early Conciliation service will be optional. However, on or after 6 May 2014, it will be mandatory for Claimants who have lodged Tribunal claims to have also made an Early Conciliation notification to ACAS. If this notification has not been made to ACAS and a conciliation certificate has not been issued, then the general rule is that the Tribunal claim will not be accepted and will not therefore be able to proceed any further.
The procedure
Under the new rules, a prospective Claimant who wants to lodge proceedings in the Tribunal will now have to provide certain information to ACAS by using an Early Conciliation form or by telephoning ACAS. Once ACAS has this information, an Early Conciliation Support Officer will make contact with the prospective Claimant to explain the process and confirm if (s) he still wishes to proceed. If the Claimant does wish to proceed, all of the information will be sent to a Conciliation Officer (CO). Subsequently, the CO will contact the prospective Claimant and, if agreed, the prospective Respondent, in an attempt to facilitate a settlement agreement between the parties within what is called the “prescribed period”. The prescribed period is one calendar month from the date the prospective Claimant contacted ACAS and it can be extended by up to 14 days if necessary. In effect, this prescribed period will ‘pause’ the prospective Claimant’s normal time limit for lodging his or her claim(s) with the Tribunal. The time limit will start to run again once the prospective Claimant receives their certificate from ACAS.
If the parties cannot be contacted, or if they decide they do not want to take part, a certificate to this effect must be issued by ACAS. Furthermore, if settlement cannot be reached or the prescribed period expires, a certificate to this effect must also be issued by ACAS. The certificate confirms that the Early Conciliation requirements have been met and it gives a reference number which should be stated on the Employment Tribunal Claim Form if the prospective Claimant then decides to lodge a claim.
If Early Conciliation is successful then the terms of the agreement will be recorded in an ACAS settlement document known as a COT3, which is legally binding.
Pros and cons?
There is the danger that, by adding a further layer to the dispute resolution process, these new rules will lead to “satellite litigation” where the parties will argue their respective cases before the formal Tribunal proceedings commence. On the other hand, the Early Conciliation scheme should help many prospective Claimants and Respondents to assess the strengths and weaknesses of their respective cases at an earlier stage and, in doing so, may well provide a cost-effective alternative to litigation.
Contact Murray Beith Murray's Solicitors Edinburgh
For further information, please contact Alan Glazer, Head of Employment, or your usual contact at Murray Beith Murray.