From 6 May 2014 the majority of potential claimants who want to bring a claim before the Employment Tribunal will be subject to a duty to participate in Early Conciliation. Prospective claimants must discharge their obligations under the new regime or face losing their right to bring a claim altogether. While some claims are exempt, the majority will be subject to the new duty including claims for unfair dismissal, breach of contract, discrimination, unauthorised deductions from wages and breaches of the Working Time Regulations 1998.
Since we first broke news of this new duty on our blog ‘The Latest Oxymoron: Compulsory Conciliation’ on 5 February 2013 the proposals have been given a face lift and the procedure is currently operating on a voluntary basis with it becoming compulsory on 6 May 2014.
In short, before a potential claimant is allowed to lodge a Tribunal claim they must file an Early Conciliation Form at ACAS which will in turn, offer them the opportunity to commence conciliation. If a potential claimant and respondent wish to participate, ACAS will aim to promote a resolution. If at any point either party wish to withdraw from the process, ACAS will step aside and allow them to proceed to a Tribunal.
A potential claimant can refuse ACAS’ invitation to conciliate from the get-go and, as long as they have filed their Early Conciliation Form and informed ACAS of their unwillingness to participate, they will be free to pursue a Tribunal claim. If either party refuses to participate ACAS must issue an Early Conciliation Certificate to that effect. That Certificate must then be produced by a prospective claimant when lodging a claim at a Tribunal. Although the new duty is not onerous, the bottom line is that the relevant Certificate must be presented to a Tribunal before a claim can be lodged on or after 6 May 2014.
Importantly, lodging an Early Conciliation Form will stop the clock on any limitation period for potentially six weeks at which point a prospective claimant will have the greater of:
(i) the balance of the original time limit; or
(ii) one month, to lodge a claim.
If a resolution is not reached within one calendar month after an Early Conciliation Form has been lodged (and no extension is granted) ACAS must issue an Early Conciliation Certificate.
The new scheme is not without its potential for confusion. We will keep you informed of further developments that arise in this area.
If you would like further information on this topic please contact the Edwin Coe Employment Team.
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