Compulsory Pre-claim Conciliation
ET1 claim – employee must now contact ACAS
Now anyone wishing to make an ET1 claim must first contact ACAS and obtain an EC certificate. The certificate will have a unique reference number that is required on the new ET1 form.
Although available from 6 April, it becomes mandatory for most claimants from 6 May 2014.
Basically if any ex-employee wants to submit a claim against you, ACAS will try and consolidate a settlement before it reaches a Tribunal through Early Conciliation (EC).
- The complainant sends the EC form to ACAS or completes the form on line, or phones
- An ACAS EC Support Officer will try to contact both parties. They will explain the process, take details and check if both parties would like to proceed with the early conciliation. Neither party has to, but if they do;
- The Conciliation Officer (CO) will facilitate for up to one calendar month to try and reach a settlement. This runs from the date on which the potential claimant first contacted ACAS. This can be extended by up to 14 days if the CO believes a settlement is imminent and both parties agree
- If not settled the complainant can then still file a claim at the Employment Tribunal.
An EC certificate will be issued to the potential claimant:
- If parties do not wish to participate in EC
- It has not been possible to contact either party
- Settlement is not achieved within the allowed time
- The CO considered a settlement is not possible.
The claimant will then use the unique reference number on the EC certificated to complete their ET1 prior to presenting a claim to a Tribunal. Except in a few minority cases, Tribunals will not accept and ET1 without a corresponding number.
So any benefit to employers?
Although no legal requirement for anyone to enter EC it may avoid expensive costs later. It also gives you time to evaluate all relevant information and associated factors.
For instance one factor is even defending a Tribunal claim is an expensive waste of your valuable time and money whether or not you win.
It is good practice to put in a procedure now. The ACAS approach may be informal, but your response should be the same as any formal legal communication regarding any claim against your business.
At the very least, it will give you time to prepare and you will gain more information on the background of the allegations. This will all help you respond comprehensively if an ET1 does land on your desk.
It may be worth noting all communication to the ACAS CO in charge of the EC is not admissible as evidence in any tribunal proceedings (unless consent is given by the communicator). You should however, ensure your procedure states all internal correspondence regarding a potential settlement is marked ‘without prejudice’. This will help prevent it from being a ‘disclosable item’ in any future tribunal proceedings.
How will this affect Tribunal time limits?
This process will extend the time available to a complainant to make his/her Tribunal claim. The current three months that applies to most claims will be frozen the day after the complainant files the EC form with ACAS.
It is unfrozen when the EC certificate is issued by ACAS (for whatever reason).
Will this cause confusion? There is clearly scope.
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I hope you have found this employment law update useful.
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Carole Thomson Chartered FCIPD, Tech IOSH
Senior HR Consultant and Trainer
HR Support for Business
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