Early conciliation – one year on

A year since it came into force, the Employment Appeal Tribunal (EAT) have considered whether there is discretion to hear the claim of a Claimant who has failed to follow the process.

What is early conciliation?
In an effort to make the Tribunal system more efficient, the Government imposed a duty upon parties to litigation and Acas to attempt early conciliation (EC) in most employment disputes before a Tribunal claim can be issued.

EC can be broken down into 3 steps:

1. The prospective claimant provides “prescribed information” (name and address of both parties) in the “prescribed manner” to Acas. This is done by completing an EC form or by telephoning Acas.

2. An early conciliation support officer (ECSO) makes initial contact with the prospective claimant, explains the process and takes some details to confirm they want to proceed with conciliation. The information is then send to a conciliation officer (CO).

3. The CO contacts the prospective claimant and confirms they’re happy for the prospective respondent to be contacted. The CO then tries to promote a settlement between the parties within the “prescribed period” (EC period). The EC period is one calendar month from the date on which the prospective claimant made initial contact with Acas and may be extended once by up to 14 days.

If the parties do not reach settlement, or if the EC period expires, an EC certificate is issued. This provides the prospective claimant with a unique reference number which they then include on their ET1 if they go ahead and issue a claim.

• An ET1 will be rejected by the Tribunal if it doesn’t contain one of the following:
• An EC number
• Confirmation that the claim does not institute relevant proceedings
• Confirmation that an EC exemption applies

What are “relevant proceedings”?
Other than in very limited circumstances, the requirement to comply with EC will apply. Relevant proceedings include claims for unfair dismissal, breach of contract, unlawful deductions from wages, discrimination, equal pay, protection from detriment and rights to time off work.

Claims with a very short limitation period where EC would not be practical, for example an application for interim relief, are not included in “relevant proceedings”.

When are relevant proceedings exempt from EC?
In the following circumstances prospective claimants wishing to issue relevant proceedings will not be required to make a request for EC:

• Where A wishes to bring proceedings on the same claim form as B or join a claim already presented by another claimant
• Where proceedings that are not relevant proceedings are brought on the same claim form
• Where the respondent has contacted Acas first in relation to a dispute
• Where an unfair dismissal claim is accompanied by a claim for interim relief
• Proceedings against the Security Service, the Secret Intelligence Service or the Government Communications Headquarters

How strict are the EC requirements?
In Cranwell v Cullen the claimant sought to bring a claim in the Employment Tribunal against her former employer who she alleged had subjected her to sexual harassment culminating in a physical assault.

Miss Cranwell issued her claim in the Tribunal without previously contacting Acas. The claim was rejected by the Employment Tribunal because the claimant had not complied with the EC requirements. Miss Cranwell had indicated that she was exempt from EC but the Tribunal held that none of the exemptions applied to her claim.

Miss Cranwell appealed to the EAT and they were sympathetic to the fact that the very thought of conciliation in her circumstances would be problematic for her. The former employer was prohibited from contacting her and she had no desire to conciliate with somebody who had treated her in the manner she alleged.

The EAT, however sympathetic to Miss Cranwell’s situation, held that it was a matter not of sympathy but of the law. They held that the Tribunal had no discretion to hear a claim where the requirements had not been met and that the tribunal had been correct to dismiss the claim.

What does this mean for employers?
This case, while unfortunate for the claimant in question, is a positive result for employers and a reminder that the requirement for Early Conciliation is absolute and strict.  The EAT held that despite their sympathy for the Claimant, there was nothing in the Employment Tribunal Rules of Procedure that allowed them to exercise discretion in this case and the claim could not proceed.

A word of caution, however, is the fact that in the EAT judgment they suggested that it was still open to the Claimant to contact Acas and obtain the requisite certificate number which would entitle her to proceed with her claim.  It would then be open to her to attempt to persuade the Tribunal that her claims should not be struck out for being out of time and, of course,  in this respect the Tribunal does have such a discretion.

How can I find out more?
For more information about the issues raised and what this means for you and your business, please do not hesitate to get in touch with myself or a member of the Employment Team.