It is now a legal requirement, under a new system called Early Conciliation, that a Claimant must contact ACAS before they can submit a claim to the Employment Tribunals. If they fail to do so (apart from in a small number of exceptions) their claim will not be accepted by the Tribunal.
A Claimant starts Early Conciliation either by completing an online form on the ACAS website or by calling the Early Conciliation helpline. The Claimant must provide their full name, address and the name and address of the employer against which they wish to claim. In addition, they can provide further contact information (email and telephone numbers) and some basic employment details, although this is not mandatory. Separate forms have to be completed for all possible Respondents – more likely in TUPE and discrimination claims. There is no requirement to state what type of claim the Claimant expects to ultimately pursue in the Tribunals.
The information is then passed to an ACAS Early Conciliation Support Officer who then will try to contact the Claimant. If no contact can be made then an EC Certificate will be issued. If the Claimant is contacted and they do not wish to conciliate then again an EC Certificate will be issued.
The important thing to note is that there is no requirement for the Claimant to agree to conciliation – all they have to do is register the complaint with ACAS and obtain an EC Certificate (which will have a unique reference) before they can submit the claim to the Tribunal.
If the Claimant does wish to conciliate then ACAS will try to contact the Respondent. If contact is made the parties then have one calendar month to attempt to resolve the issue (this can be extended by a further 14 days if both parties agree that longer is needed). If no contact with the Respondent is made, the Respondent does not want to conciliate or if conciliation is unsuccessful then an EC Certificate will be issued. If a resolution is reached then ACAS will record the terms of agreement on a COT3 agreement.
In practice, most Claimants are likely to want to engage in the conciliation process to try to resolve the matter without having to issue a Tribunal claim and incur the cost of the Tribunal fees, but there are drawbacks to the new system.
Unrepresented Claimants are unlikely to be able to assess what would be a reasonable level of compensation in their case, and as ACAS are impartial and cannot give advice, unscrupulous employers might seek to take advantage of this. In addition, the scope of the conciliated agreement might cause problems. For example, the Claimant might have a specific claim about wages, but the agreement might be so wide that it prevents them later making a claim for discrimination.
Some employers might take the view that they will not engage in early conciliation, waiting instead to see if the employee pursues the claim to the Tribunal, knowing that Tribunal fees are likely to dissuade a lot of potential Claimants from continuing with their complaint. That is, however, potentially a risky strategy as the Claimant will want to add on the fees to any settlement/Tribunal award, resulting in an increased cost to the employer.
There are consequences in respect of time limits for pursuing claims as the EC process “stops the clock”, meaning that the normal time limit for submitting a claim to the Tribunal can potentially be extended, but the rules are complicated. Our view is that Claimants should still aim to submit their claim within the normal time limit where possible or seek legal advice about when the time limit will expire.
Early Conciliation can also be started by employers, but Claimants have to be wary of this as it will not result in an EC Certificate being issued (which is needed to bring a claim in the Tribunals) and it also does not “stop the clock” in respect of time limits.