The Government has published a consultation on how the proposed ACAS “early conciliation” (EC) scheme will operate in practice. Under the proposals, a prospective claimant in “relevant proceedings” must lodge a form with ACAS to commence the EC process. During the EC process, the time limit for issuing the relevant claim with the Employment Tribunal (ET) will be suspended. At the end of the EC process, ACAS will issue the prospective claimant with an EC certificate, which will contain a unique reference number. The prospective claimant will be unable to commence relevant proceedings in the ET without the EC certificate. The Consultatio closes on 15 February 2013.
The Government introduced its plans to require parties to a dispute to consider EC via ACAS in the Enterprise and Regulatory Reform Bill. On 17 January 2013, a consultation on the proposed secondary legislation which addresses how the EC scheme will work in practice was published.
When will a prospective claimant be complete an EC form?
A prospective claimant will be obliged to complete an EC form and submit it to ACAS prior to issuing “relevant proceedings” in the ET. The list of relevant proceedings will be set out in section 18(1) of the Employment Tribunals Act 1996. This will cover almost all standard employment-related claims (e.g. unfair dismissal, deductions from wages, discrimination). Annex C to the Consultation lists those jurisdictions which will not be covered by the EC process.
Therefore, in most cases, the prospective claimant will be obliged to complete an EC form. However, there are also four very limited exceptions to this requirement as follows:
The prospective claimant is part of a “multiple claim” and another party to the claim has already submitted the EC form to ACAS. A multiple claim is one in which there are multiple claimants bringing claims against the same respondent/s on the same or a similar set of circumstances.
The prospective claimant wishes to start “relevant proceedings” on the same ET1 form as non-relevant proceedings (which would not be subject to the EC process).
The prospective respondent has already contacted ACAS and asked them to conciliate. However, where this has happened, the limitation period for the claim will not be suspended. As a result, it is unlikely that many prospective claimants would wish to take advantage of this exemption.
The prospective claimant is bringing proceedings against the Security Service, the SIS or GCHQ.
Therefore, in the vast majority of cases, the prospective claimant will need to complete and submit an EC form to ACAS. The prospective claimant will be required to do this within the ordinary time limit for issuing the particular claim (e.g. within 3 months of dismissal in an unfair dismissal claim).
What information is required to complete the EC form?
The draft EC form (set out at Annex B to the Consultation) requires only very basic information about the prospective claimant and respondent. Consideration was given to whether details of the nature of the dispute should be included on the EC form, however, this was rejected on the basis that this would be difficult for vulnerable and unrepresented claimants. The Government’s view is that there would be a risk that prospective claimants would fail to indicate all their potential claims on the EC form because they might be unaware they even existed.
How is the EC form to be submitted to ACAS?
The prospective claimant can either submit a soft copy of the EC form online or a hard copy by post or hand delivery to the address on the EC form. Where the EC form is submitted online, an automatic acknowledgment will be sent to the prospective claimant containing further information on the EC process. Where the EC form is submitted by hard copy, a postal acknowledgment will be sent.
When is the time limit for issuing the relevant claim suspended?
The time limit for issuing the relevant claim in the ET will be suspended from the date of receipt of the correctly completed EC form. If submitted online, this will be the date that the EC form is received by ACAS (which will usually be the same day as it is submitted). Where a hard copy is submitted, this will be the date on which the EC form is received and date stamped by ACAS.
It is foreseeable that there will be occasions when the EC form is lost (particularly hard copy forms which might, for example, get lost in the post). The Consultation says that in such circumstances the prospective claimant will be unable to lodge a claim with the ET (as they will not have had an EC certificate issued to them) and will need to lodge a second EC form. Where this would mean that the claim would be out of time, it will be for the ET to decide whether to accept the claim.
What will ACAS do once they receive a completed EC form?
First stage contact: within 1 day of receiving the EC form, an EC Support Officer (ECSO) will make “reasonable” attempts to make telephone contact with the prospective claimant. The consultation seeks views on what “reasonable” should mean in this context. Where the ECSO is unable to make contact or the prospective claimant indicates that he has changed his mind, the ECSO will close the case and issue the EC certificate. In such circumstances, the prospective respondent will not be notified.
Second stage contact: where the prospective claimant indicates to the ECSO that he wishes to proceed with EC, the case will be passed to an experienced ACAS conciliator. The conciliator will attempt to make contact with the prospective claimant within 2 working days of receipt of the EC form. If, at this stage, the prospective claimant indicates that he does not wish to proceed with EC, the conciliator will close the case and issue the EC certificate (again the prospective respondent will not be notified). However, if he wishes to proceed with the EC, then the conciliator must attempt to progress a settlement, even where he does not consider that the prospective claimant has a justiciable claim (as this is a matter for an ET to determine).
Contact the prospective respondent: within 2 days, the conciliator will then make “reasonable” attempts to contact the prospective respondent. Where contact is not made or, where it is made, but EC is declined, the conciliator will notify the prospective claimant, close the case and issue the EC certificate.
Attempt settlement: where the prospective respondent agrees to engage in EC, the conciliator will try to promote a settlement between the parties. The conciliator will have up to 1 calendar month from the date of receipt of the EC form to achieve this.
What are the potential outcomes?
EC fails and closes early: where discussions fail, either party withdraws or the conciliator believes settlement is not possible, the EC will be closed early and the EC certificate issued.
EC expires without settlement: if the EC period expires and the conciliator considers that there is a reasonable prospect of settlement (and both parties agree) then the EC period can be extended by up to 2 weeks. If the EC period expires (at the end of 1 calendar month or at the end of the extended period) without settlement, the case will be closed and the EC certificate issued.
Settlement achieved: if settlement is achieved within the EC period, the parties will enter into a COT3 or a settlement agreement. The conciliator will close the case and issue the EC certificate. The EC certificate will still be issued even where settlement has been achieved in case: (i) the settlement does not cover all issues in dispute; and/or (ii) the settlement fails.
How will the EC certificate be issued and why is it important?
The EC certificate will be issued to the prospective claimant either by email or by post. Where issued by email, the EC certificate is deemed received on the date sent by ACAS. Where issued by post, the EC certificate is deemed received 2 days after posting. This is important because the time limit for the relevant claim will begin to run again 1 day after the day the EC certificate is deemed to have been received. Where a prospective respondent has had contact with ACAS, they will also receive a copy of the EC certificate.
The EC certificate will contain a unique EC reference number which the prospective claimant will need to include on the ET1 form. The ET will not accept relevant claims which do not contain an EC reference number.
Whilst early intervention by ACAS may be successful in some cases, it is clear to see that the new scheme will add another layer of complexity to many disputes. In particular, claimants will need to ensure that they remember to lodge the new EC form prior to issuing proceedings in the ET and do so within the ordinary time limit for issuing the claim. Claimants will also need to be available to be contacted by ACAS (or lose the opportunity to engage in EC) and will need to check the date on which any EC Certificate in deemed received, as this will trigger the time limit once again.
For employers, it is worth noting that the prospective claimant has to provide the employer's contact details to ACAS who will use these details when attempting to make contact with the employer later in the process. It is clearly possible that an inappropriate contact number might be given here and it would, therefore, be sensible for employers to brief their staff that any telephone contact made by ACAS should immediately be referred to the HR department / a named person. This should ensure that contact from ACAS is not missed.
Consultation on Early Conciliation