Early conciliation is coming into force on 6 April 2014
However the legal requirement on a potential claimant to provide an EC form to ACAS before presenting a claim at an employment tribunal ONLY has effect for claims presented on or after 6 May 2014.
There is a transitional period between 6 April 2014 and 5 May 2014 and during this period participation in the EC process is voluntary. It is likely however that prospective claimants will start to use the process from 6 April 2014.
There are strict time limits within which a prospective claimant must present an ET1 claim form to the employment tribunal. In most claims, this is three months from the date of the act complained of (e.g the date of dismissal or the date of a discriminatory act).
The EC process effectively puts the time limit on hold to give parties the opportunity to resolve matters outside of the formal legal tribunal framework.
Essentially the period beginning with the day after the EC form is submitted to ACAS and ending on the day the EC certificate is received will not be counted for time limit purposes.
Example 1:
A potential claimant is dismissed on 21 February 2014. The potential claimant considers they have an unfair dismissal claim and their claim must be presented at an employment tribunal on or before 20 May 2014. The potential claimant submits an EC form on 1 May 2014. A conciliation process is undertaken but it becomes apparent that settlement cannot be reached and ACAS email an EC certificate on 17 May 2014 to the claimant and to the respondent. In this scenario 16 days are added to the normal time limit in order to allow the prospective claimant to present their claim to an employment tribunal if they wish to do so.
However please beware that if the time limit for a prospective claimant to present an ET1 claim form expires during the conciliation period then the time limit for the claim to be presented to an employment tribunal is extended by one calendar month.
Example 2:
Claimant is dismissed on 17 February 2014. The prospective claimant would have to present a claim of unfair dismissal to an employment tribunal on or before 16 May 2014. The prospective claimant submits an EC form to ACAS on 1 May 2014. A conciliation process is undertaken but it becomes clear that settlement will not be achieved and ACAS issue an EC certificate by email on 17 May 2014. As the claimant’s time limit to submit their claim has expired during the conciliation process they now have a further calendar month in which to present their claim at an employment tribunal.
There is a risk that prospective claimants may wait until their time limit is about to expire before submitting an EC form and by doing so hope they can benefit from an extra month to lodge their claim at an employment tribunal. This means employers can no longer rely on the three month time limit as a benchmark as claims could be received after this time frame.
The tribunal will reject an ET1 claim form submitted by a prospective claimant if it does not contain the early conciliation number.
Respondents (employers) are not compelled to cooperate with the Early Conciliation process but clearly there are advantages in doing so. You have an opportunity to narrow the issues and explore a potential settlement in the event that an employment claim becomes a real prospect. Being able to assess the risk and then quantify the value of a potential claim can be very helpful in this situation. In many cases it is better to engage rather than ignore what is happening.
There are only a few circumstances in which a prospective claimant can present a claim to an employment tribunal without going through EC first. These are claims for:
- Interim relief – in certain circumstances where a prospective claimant claims that they were dismissed for certain automatically unfair reasons (e.g. whistleblowing) they can claim “interim relief”. The effect of such relief is to continue their employment contract, pending the final hearing of their claim.
- If the prospective claimant is part of a multiple of claimants i.e. another person has already complied with the requirements to request EC and the prospective claimant wants to lodge an ET1 claim form with that person
- Where the claim is against the Security Service, the Secret Intelligence Service or GCHQ
Where the Claimant produces evidence that the Respondent has contacted ACAS
Yes, an employer can make a request for EC. However in these circumstances stop the clock does not apply (see extension for time), meaning the deadline for a prospective claimant to present an ET1 claim form is not suspended.
Therefore in this scenario a prospective claimant would need to submit an EC form in order to stop the clock.
This can be a tactically shrewd move on the part of the Respondent.
