In January 2013 the Government launched a consultation on the Enterprise and Regulatory Reform Bill which, once in force, will require prospective Claimants to request early conciliation before certain proceedings can be issued at the Employment Tribunal. This change ensures that parties attempt pre-claim conciliation through ACAS before a claim can be pursued.
The proposed early conciliation plans are to consist of a four stage procedure:
- A prospective Claimant must send certain prescribed information in a prescribed manner to ACAS – this consists of the claimant and respondent’s names, addresses and contact details. These should be submitted on an Early Conciliation form, either online or by post. Once ACAS has recorded receipt of the completed form, the limitation periods for lodging an ET1 will be suspended for conciliation to take place.
- ACAS will send a copy of this information to the designated early conciliation support officer. The conciliation officer will outline the conciliation process and check whether the claimant requires any reasonable adjustments. The conciliation officer will also be able to explain and discuss any misunderstandings with the claimant e.g. qualifying periods.
- Where the claimant has indicated that they wish to attempt early conciliation, the conciliation officer must then engage in discussions and try to promote a settlement between the parties within a prescribed period (one month). If, on expiry of the one month period, the conciliator considers that there is a reasonable prospect of achieving a settlement, the conciliation period may be extended by up to an additional two weeks with the parties’ agreement.
- If early conciliation is successful, the parties sign a binding agreement, either a COT3 or a private agreement, and no Tribunal claim would be brought. If a settlement cannot be reached either because it has not been possible or the prescribed period has expired, the conciliation officer will issue a certificate. The claimant will need this certificate to then go on and issue a claim in the Employment Tribunal.
To ensure compliance with the early conciliation proposals the Government intends to amend the Employment Tribunal Rules of Procedure to require claimants to include a unique early conciliation reference number given to them by ACAS on any ET1. If the ET1 does not include this unique reference number, the Tribunal will dismiss the claim. The consultation will close on 15 February 2013 and the relevant provisions of the Enterprise and Regulatory Reform Bill are expected to come into force in summer 2013.
Commentators do question whether the parties will have much appetite to settle before a claim has been issued, for example, employers may want to test whether a claimant is serious about a claim by preferring to see whether a claim is actually raised. There is also concern as to whether there will be satellite legislation as there was with the statutory dispute resolution procedures which led to an unnecessary increase in claims being brought before the tribunal.