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ASSESSMENT TITLE: How has the introduction of mandatory Early Conciliation changed the process of bringing a claim to the Employment Tribunal?

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How has the introduction of mandatory Early Conciliation changed the

process of bringing a claim to the Employment Tribunal?

Mandatory ACAS Early Conciliation

On the 6th of May 2014, the ACAS Early Conciliation scheme (“Early Conciliation”)

which had been in place on a voluntary basis since April, became a mandatory first

step for those wishing to bring a claim to the employment tribunal.

The aim of the mandatory Early Conciliation scheme is to reduce the burden on

employment tribunals by lowering the number of vexatious claims and claims of low

value. The scheme encourages conversations and negotiation between the parties

at an early stage, to avoid the matter proceeding to tribunal.1

Early Conciliation has also been codified in statute;: it can be found in section 7 of

the Enterprise and Regulatory Reform Act 20132 and the Employment Tribunals

(Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014.3 Rules 3,

53(e) and 95 of The Employment Tribunal Rules of Procedure 2013 also reference

the importance and necessity of Early Conciliation. 4

Although the concept of conciliation in employment cases has existed since the

1970’s, this scheme has evolved from the voluntary Pre-Claim Conciliation (‘PCC’)

1 ‘Fiona Rushforth: What Difference has ACAS Early Conciliation made?’ available at http://www.hrreview.co.uk/analysis/analysis-employment-law/what-difference-has-acas-early-conciliation-made/53876 (last visited 22 January 2015)2 Enterprise and Regulatory Reform Act 2013 3 Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 20144 The Employment Tribunal Rules of Procedure 2013

process, which had been available to parties since 2009.5 According to ACAS’

statistics, in the (approximately) 20,000 cases (approximately) they had conciliated in

since the scheme began, less than 25% of these had proceeded to tribunal. They

estimated that PCC had saved an average of £2,700 per claim. 6 30% of employers

also stated that they believed the experience of taking part in PCC had armed them

with the ability to foresee employment related issues and prevent them from arising

in the future. 7

Now over halfway through the scheme’s first year, I intend to set out the procedure

behind the practical use of Early Conciliation, clarify any complications that arise

from the process and highlight some of the issues of most importance to

employment law practitioners. As a reasonable amount of time has now passed

since the introduction of the scheme, this note will also draw the reader’s attention to

how Early Conciliation has been received, supported by evidence from the first 6 six

months of statistics. Finally, this note will assess the effect that the new scheme will

have on the day- to day practice of employment lawyers and any steps that can be

taken to use Early Conciliation in the most productive way.

Procedure

Although conciliation has been dubbed ‘mandatory’, it is only actually mandatory for

the claimant to use ACAS as their first port of call with details of their claim. Should

one or both parties decide that they do not want to take part in the Early Conciliation

process, they simply have to say so. 8 ACAS encourage the parties to exhaust all

5 ‘Andrew Wareing: Early Conciliation so far’ available at http://www.acas.org.uk/index.aspx?articleid=4964 (last visited 22 January 2015) 6 ‘Employment Tribunal Claims – A Practical Guide’ published by BPP Professional Education, Version 32 (page 17)7 Noel Lambert ‘Early Conciliation’ in Employment Law Bulletin (2013) 118(Dec), 2-38 ‘Just how mandatory is mandatory early conciliation?’ available at http://www.lexology.com/library/detail.aspx?g=cb249723-152a-4e81-8ed2-12b58e931571 (last visited 22

internal procedures before engaging in Early Conciliation, but it is not a condition of

being able to participate, unlike in PCC . 9

The process begins when the claimant contacts ACAS and is assigned a conciliator

known as an Early Conciliation Support Officer (“ECSO”). This contact is made

through submitting a form, either online or by post, or by contacting ACAS by

telephone.10

Contacting ACAS has the effect of freezing the three month time limit for bringing a

claim. Early Conciliation lasts for a period of one calendar month, but it can be

extended by up to 14 days if it appears that the parties are very close to settlement.

The role of the ECSO is first to first contact the respondent party in order to organise

a meeting, which will most often take place over the telephone. The ECSO only has

to make ‘reasonable attempts’ to contact the Respondent and if no response is given

then they will end the process. 11

In some cases, it might be difficult for the ECSO to get in contact with the

Respondent. In order to ensure that contact between ACAS and the parties is easier,

ACAS have aimed to produce a database of registered contacts with larger

companies (those with more than 1,000 employees).12 Larger companies can

therefore appoint a member of their HR department or their lawyers, for example, to

deal with ACAS ECSO’s should a case arise. The database aims to accelerate the

January 2015) 9 ‘Fiona Rushforth: What Difference has ACAS Early Conciliation made?’ available at http://www.hrreview.co.uk/analysis/analysis-employment-law/what-difference-has-acas-early-conciliation-made/53876 (last visited 22 January 2015)10 ‘Employment Tribunal Claims – A Practical Guide’ published by BPP Professional Education, Version 32 (page 17)11 ‘ACAS Early Conciliation Explained’ (page 6) available at http://www.acas.org.uk/media/pdf/h/o/Early-Conciliation-explained.pdf (last visited 22 January 2015)12 ‘Early Conciliation? Here’s what you should know’ available at http://realbusiness.co.uk/article/27916-early-conciliation-heres-what-you-should-know (last visited 22 January 2015)

process, as well as preventing those without knowledge of the case from being

contacted and potentially missing the chance to engage in Early Conciliation.13 This

will also enable the same person to be contacted each time, ensuring a consistent

process.

If contact is successful and a meeting is arranged, the ECSO will discuss the issues

between the parties and explain how the process is to work. Their role also includes

discussion about the internal procedures that could be utilised, encouraging

proposals for settlement and discussing other options. They must, however, maintain

a balanced view and see both sides of the issues. The ECSO’s role does not extend

to giving advice or commenting on the merits of either party’s case.

The parties are free to withdraw from the process at any stage, when they will be

presented with a certificate showing that they have contacted ACAS (and in certain

cases, cooperated with the process for as long as possible). The certificate will

contain a unique reference number which will be required to prove that the parties

have gone through the process of contacting ACAS. The number will also need to be

quoted should the claimant wish to take the matter forward and make a claim to the

tribunal. 14

Therefore, the ECSO is free to provide a certificate in the following circumstances: –

1. Where one or neither party can be contacted;

2. Where one or neither party is willing to participate;

3. Where there is no reasonable prospect of the parties settling the case; or

13 ‘Change for Good? ACAS early conciliation scheme introduced on 6 April’ available at http://www.hartbrown.co.uk/individuals/article/change-for-good-acas-early-conciliation-scheme-introduced-on-6-april (last visited 22 January 2015) 14 ‘Employment Tribunal Claims – A Practical Guide’ published by BPP Professional Education, Version 32 (page 17)

4. Where Early Conciliation is successful and the parties have agreed a

settlement.

Once a certificate has been received by the parties, the time limit for bringing a claim

will be reactivated. However in the fourth scenario, if the conciliation process is a

success the parties will sign a COT3 which will entrench them in their agreement and

not allow either side to bring a claim further down the line.

It should be noted that employers can also be the first to contact ACAS for Early

Conciliation, but this will not have the same ‘stop the clock’ effect for the potential

Claimant. In order to stop the time limit from running, the potential Claimant will also

have to contact ACAS. If the potential Respondent contacts ACAS first, the ECSO

will then contact the claimant directly and should they not wish to participate in Early

Conciliation, a certificate will be issued to that effect. This will act as one of the

exemptions listed below.15

Exemptions

Although the process of contacting ACAS is mandatory, there are five exemptions to

this rule and these can be found in section 3 of the aforementioned Employment

Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations

2014. They are as follows: –

1. There is a joint claim, and the other claimant already has an Early Conciliation

number;

2. ACAS does not have the authority to conciliate on the matter;

3. The employer has already instructed ACAS on the dispute;

15 ‘ACAS Scheme for Early Conciliation: What it means for employees’ available at http://www.yesslaw.org.uk/downloads/YESS-Early-Conciliation.pdf (last visited 22 January 2015)

4. There has been unfair dismissal and the claimant intends to apply for interim

relief; and

5. The claim is against the Security Service, the Secret Intelligence Service or

GCHQ. 16

Exemptions one and three are the most likely to arise.17 These exemptions can also

be found on the claim form and will still have to be assessed before they can be

considered valid. If an exemption is used inappropriately, the tribunal has the right to

reject the claim altogether. 18

Effect on Time Limits

As mentioned before above, if a potential claimant contacts ACAS, the clock is

stopped on their three month time limit. Therefore, the date of contact is known as

‘Day A’ and the clock stops the day after ‘Day A’. The clock restarts on the day that

Early Conciliation ends and a certificate is received; this is known as ‘Day B’. These

labels were created in order to make the calculation and understanding of altered

time limits easier, but they have in fact caused some confusion.19

If, for example, the application is made on the last day of the three month time limit,

section 292A of the Enterprise and Regulatory Reform Act 2013 comes into effect.20

This states that,

16 ‘Early Conciliation Exemptions’ available at http://www.acas.org.uk/index.aspx?articleid=4779 (last visited 22 January 2015)17 ‘ACAS: What you need to know about mandatory Early Conciliation’ available at http://www.gosschalks.co.uk/insights/view/acas-what-you-need-to-know-about-mandatory-early-conciliation (last visited 22 January 2015)18 ACAS Scheme for Early Conciliation: What it means for employees’ available at http://www.yesslaw.org.uk/fact-sheets/early-conciliation/ (last visited 22 January 2015)19 ‘Employment Tribunal Claims – A Practical Guide’ published by BPP Professional Education, Version 32 (page 18)20 ‘ACAS Early Conciliation – what happens if an application is made on the day of limitation?’ available at http://www.michaellewin.co.uk/acas-early-conciliation-what-happens-if-an-application-is-made-on-the-day-of-limitation/ (last visited 22 January 2015)

“If a time limit set by a relevant provision would (if not extended by this

subsection) expire during the period beginning with Day A and ending one

month after Day B, the time limit expires instead at the end of that period.” 21

The effect of this section is that no matter how late into the limitation period ACAS

are contacted, the potential claimant will always have at least one month from ‘Day

B’ to submit an ET1 claim form. 22

For example: –

If an employee’s employment is terminated on the 5th of January, their original

limitation period will end on the 4th of April.

If ACAS are contacted on the 10th of March (‘Day A’), the clock will pause from

the 11th of March.

Early Conciliation ends on the 15th of March (‘Day B’) and so the new date for

limitation is extended by 5 five days to 9th April.

‘Day B’ plus one month is the 15th of April.

Therefore, as the original period has expired during the period of ‘Day A’ to

‘Day B’ plus one month, it is extended to the 15th of April (one month from the

end of ‘Day B’).

This only occurs in the event that ACAS are contacted with less than a month before

the time limit expires. Where there is over a month left, the original limitation date

stands and is only added to by the amount of time that Early Conciliation took place.

For example: -

21 Enterprise and Regulatory Reform Act 2013, Schedule 2, Section 292A22 ‘ACAS Scheme for Early Conciliation: What it means for employees’ available at http://www.yesslaw.org.uk/downloads/YESS-Early-Conciliation.pdf (last visited 22 January 2015)

If an employee’s employment is terminated on the 5th of January, their original

limitation period ends on the 4th of April.

If ACAS are contacted on the 15th of January (‘Day A’), the clock will pause

from the 16th of January.

Early Conciliation ends on the 20th of January (‘Day B’) and so the new date

for limitation is extended by 5 five days to the 9th of April.

There is still more than one month from ‘Day B’ to make a claim so no further

time is added.

Pros and Cons

The basic premise and aim behind the Early Conciliation process, being to

encourage negotiation in a neutral environment, is essentially an admirable one and

one which brings benefits to both parties.

The major benefit of the scheme is that it does not require representation and there

is no fee for engaging in Early Conciliation with the help of an ECSO. As discussed

above, the ‘stop the clock’ effect on the time limit for bringing a claim means that no

time is lost or wasted as a result of utilising the scheme.

The parties have the benefit of engaging in a confidential process.23 Anything

discussed during conciliation will be without prejudice which means that parties will

be able to negotiate openly without fearing the ramifications if they later do proceed

to tribunal.

In theory, the process should allow the parties to air their arguments and concerns

before a neutral third party and for them to focus on the real issues. Engaging in

23 ‘Early Conciliation Explained’ available at http://www.acas.org.uk/media/pdf/h/o/Early-Conciliation-explained.pdf (last visited 22 January 2015)

active dialogue will also allow the parties to see the strengths and weaknesses of

their cases from each perspective. This could help them to realise whether or not the

claim is worth pursuing, or whether there are any avenues for negotiation. The

parties could even start to see the other side’s point of view which could in turn help

to diffuse some of the negativity between them.

If a settlement is reached through Early Conciliation, the use of the COT3 is a much

cheaper and faster way of drawing up an agreement than going through the ‘back

and forth’ process of drafting a settlement agreement through lawyers. Any

settlement reached through Early Conciliation is final, even if nothing is signed

immediately; a verbal indication is enough to bind the parties in the outcome. 24 This

agreement will prevent the claimant from bringing the claim before the tribunal in the

future.

However, it should be noted that claimants are not obliged to raise all the issues they

are planning to include in their ET1 during Early Conciliation.25 If a settlement is

reached on certain issues through Early Conciliation, the COT3 should be drafted

very carefully to cover all of the remaining potential claims, in order to prevent these

from being raised in future. 26

Essentially, there are very few adverse consequences to engaging in the process as

it exists, but there are flaws within the structure of Early Conciliation which have

caused concern over its effectiveness.

24‘Mandatory ACAS conciliation: what do you really need to know?’ available at http://www.kennedyslaw.com/article/acasconciliation/ (last visited 22 January 2015)25 Ibid 26 ‘Employees prefer early settlement to facing a full tribunal’ available at http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2014/09/19/employees-prefer-early-settlement-to-facing-a-full-tribunal.aspx (last visited 22 January 2015)

For example, there is a general concern amongst practitioners and commentators

that as the scheme is not mandatory, it becomes more of a box ticking exercise en

route to the inevitability of a tribunal claim.

Whether or not the parties engage with the process will depend on the

circumstances of individual cases. There are also concerns that Early Conciliation

comes too late in the timeline of the dispute. It may be that by the time a claimant

has decided to bring a claim to the employment tribunal, both parties have become

so entrenched in their positions that any form of alternative dispute resolution is

futile.

This problem was commented upon by a prominent mediation group who said that

while mediation in itself was a good idea,

“ACAS’ Early conciliation is, in effect, late conciliation. Last ditch attempts to

resolve complex disputes are often desperate and ineffective. Disputes are

best resolved at an earlier stage - before either party is preparing to enter into

costly litigation.” 27

Therefore, it seems that if problems are not dealt with as they arise and are left to

fester, a disgruntled employee could take their dispute and make the transition to

potential claimant. A delay in addressing workplace issues could cause a potential

claimant to become stubborn and could also exacerbate a sense of feeling wronged

or betrayed by their employer. While inevitable, this may not be ameliorated for

parties who take legal advice, as their representatives are likely to be informing them

of all of the potential claims they could make (or how to resist these potential claims).

27 ‘Professional Early Conciliation Service Launched’ available at http://www.thetcmgroup.com/news/469-pecs-launched-oct2014/?p_view=all (last visited 22 January 2015)

This contrasts with the former PCC scheme which focused on dealing with

workplace disputes at a very early stage. In fact, it was available before the potential

claimant had even been dismissed and focussed on making sure that conversations

happened sooner rather than later. The requirement to exhaust internal grievance

and disciplinary procedures was also a necessary first step before ACAS were

contacted for PCC. It could be said that this new Early Conciliation scheme comes

into effect at a point when parties have become set in their arguments and not at a

stage when negotiations could be more reasonable. Dealing with conflicts in the

workplace could help to save employers time and money by lowering their staff

turnover and thereby avoiding the need to recruit and train new staff.

However PCC did have problems, which Early Conciliation has sought to rectify. It

was only available to those who contacted ACAS for assistance. Many employees

may not have known about its existence and so they would have been able to help

far fewer potential claimants. Another issue was that PCC was only of benefit while

the issue was a workplace dispute; once a potential claimant became forced to

submit an ET1 it was usually too late in the process to help. 28

PCC ended when Early Conciliation became voluntary on the 6th of April 2014, but

ACAS have stated that they would continue to try and make themselves available to

assist with disputes arising in the workplace, despite the fact that this is not a part of

the Early Conciliation scheme. 29

It could also be stated that the level and quality of the process depends as much on

the engagement of the ECSOs as it does on the engagement of the parties. One has

28 ‘Andrew Wareing: Early Conciliation so far’ available at http://www.acas.org.uk/index.aspx?articleid=4964(last visited 22 January 2015)29 ‘Fiona Rushforth: What Difference has ACAS Early Conciliation made?’ available at http://www.hrreview.co.uk/analysis/analysis-employment-law/what-difference-has-acas-early-conciliation-made/53876 (last visited 22 January 2015)

to place reliance on the fact that the ECSO will see the process as something more

than a box ticking exercise, and that they will be someone who will truly facilitate the

parties and encourage them towards a settlement (insofar as they are able to).

However, ACAS ECSO’s are able to offer remedies and suggestions that the tribunal

cannot. For example, rather than just a monetary settlement, an ECSO might

suggest that a Respondent party could offer the Claimant a more favourable

reference or even just an apology. 30They could also aid in managing the

expectations of the parties, by steering them to look at certain relevant documents

and explaining things such as mitigation, which would affect an overall settlement if

the matter proceeded to tribunal.

Following on from the limitations of the ECSOs duties, there could also be the

argument that Early Conciliation will not be useful to those who have particularly

complex cases involving lots of issues and multiple parties. 31 It is likely that the

issues will need to be narrowed in such cases and as the ECSO is not able to give

legal advice during Early Conciliation, it would seem that perhaps simpler cases will

be more suited to this type of dispute resolution.

Another reason as to why Early Conciliation might not be useful in more complex

cases could be the wider opinion that one month (with the possible extension of 14

days) is not long enough to enter into proper negotiations. As mentioned previously,

the process starts with the claimant contacting ACAS, being assigned an ECSO and

the ECSO in turn contacting the respondent. It is possible that this first stage could

30‘ Early Conciliation Final Impact Assessment’ (page 28) available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284042/bis-14-585-early-conciliation-impact-final.pdf (last visited 22 January 2015)31‘ Fiona Rushforth: What Difference has ACAS Early Conciliation made?’ available at http://www.hrreview.co.uk/analysis/analysis-employment-law/what-difference-has-acas-early-conciliation-made/53876 (last visited 22 January 2015)

take a week in itself and thereafter the parties are left with three weeks to discuss

the issues of the case. It could be argued that the time constraint in itself will result in

fewer settlements being reached, with neither party feeling comfortable enough to

come to any sort of agreement under this time pressure.

A further problem could be in the event that parties do not look to use the scheme for

its intended purpose. There is a risk that parties could begin to abuse the process by

asking tactical questions and expose the weaknesses of the other party’s case in

order to strengthen their own.32 While this could be considered a benefit depending

on the circumstances of the case, if parties have no intention of negotiating fairly and

are simply using Early Conciliation as a bluff in order to force a more favourable

settlement, it could result in the development of inequality.

However, the main debate seems to centre on the calculation of extended time

limits. Some practitioners have raised concern over whether “one day after Day B”

means that the ET1 should be submitted within one month, or after one month. For

example, if ‘Day B’ is the 5th of June and the ET1 should be submitted in a month of

‘Day B’ (i.e. the 4th of July), there is debate over whether the deadline is the 4th or

the 5th of July. There have not yet been any definitive answers from the Employment

Tribunal on this but it could cause a number of claims to be submitted out of time. 33

This could also lead to people using the scheme to artificially extend the time limit,

by contacting ACAS without any intention of negotiating properly.

There could also be issues further down the line in regard to when someone is

deemed to have received the Early Conciliation certificate (which marks ‘Day B’).

32 Just how mandatory is mandatory early conciliation?’ available at http://www.lexology.com/library/detail.aspx?g=cb249723-152a-4e81-8ed2-12b58e931571(last visited 22 January 2015)33 ‘Employment Tribunal Claims – A Practical Guide’ published by BPP Professional Education, Version 32 (page 18)

Where the certificate is sent by email this should be relatively straightforward,

however in the case of receiving a certificate by post it seems that problems will

inevitably arise and a rule will need to be developed. 34 As a result, rather than

avoiding needless litigation, a new series of hearings could start to come before the

tribunal, with parties seeking guidance on time limits and applications being made for

cases to be struck out. 35

Statistics

The statistics from ACAS in relation to the results of the first quarter showed that the

levels of uptake were high. From the perspective of employees, only 7% rejected

participation in the process in an outright manner. Similarly, only 9% of employers

rejected involvement where the employee had indicated that they would like to

participate. 36 This clearly shows that in the vast majority of cases, parties were

ready and willing to cooperate in the process.

The outcomes from the first quarter also indicated the beginnings of success, with

16.5% of cases participating in Early Conciliation fully resulting in a COT3 being

drawn up.37 However, it must be noted that this figure is only representative of the

levels of cases which were resolved during the conciliation period of one month (plus

possible extension of up to 14 days). It is not possible to indicate at this point how

many cases were resolved after the process had ended. It is also important to

remember that a COT3 is not the only way in which a potential claim can be resolved

34 ‘Early Learning’ available at http://www.newlawjournal.co.uk/nlj/content/early-learning (last visited 22 January 2015)35 ‘ACAS Early Conciliation’ available at http://www.balfour-manson.co.uk/news-plus-events/comments/acas-early-conciliation/ (last visited 22 January 2015)36 ‘Early Conciliation Update’ available at http://www.acas.org.uk/index.aspx?articleid=4960 (last visited 22 January 2015) 37 Ibid

between the parties, and so there may be more resolutions than are accounted for in

the statistics.38

The figures also show that of the cases that took part in Early Conciliation, 58% did

not proceed to tribunal.39 These results seem high, but seem more reasonable when

they are examined in the context of the introduction of employment tribunal fees in

2013. The statistics could also be the result of the aforementioned tactical use;:

claimants could be calling their employer’s bluff and using Early Conciliation in order

to elicit a settlement with no real intention of taking the matter forward. However, it is

not possible to say at this stage whether tactics are skewing the figures to indicate

success, as further time for the scheme to develop is required. 40

Therefore based on the statistics, the early indication seems to be that during this

first quarter, the scheme has been working in the way the Government and ACAS

had hoped. Whether these high results will slowly fade as the scheme becomes less

of a novelty remains to be seen.

Effect on Practitioners

This scheme will have a great impact on the day to day practice of employment law

practitioners, as it has caused a substantial change to procedure. Practitioners will

be required to alter their approach and shift their focus towards alternative dispute

resolution. Although ACAS state that legal representation is not necessary in order to

go through the Early Conciliation process, it seems likely that solicitors would have

38 ‘Andrew Wareing: Early Conciliation so far’ available at http://www.acas.org.uk/index.aspx?articleid=4964 (last visited 22 January 2015)39 ‘ACAS Early Conciliation statistics – a roaring success?’ available at http://www.morton-fraser.com/knowledge-hub/acas-early-conciliation-statistics-roaring-success (last visited 22 January 2015) 40 ‘Just how mandatory is mandatory early conciliation?’ available at http://www.lexology.com/library/detail.aspx?g=cb249723-152a-4e81-8ed2-12b58e931571 (last visited 22 January 2015)

been instructed by this stage by the majority of employees considering bringing a

claim to the tribunal.

On a purely administrative level, the Early Conciliation scheme adds an extra strand

of complexity to the process of bringing a claim.41 Many of these claimants will be

unaware of the Early Conciliation process and so practitioners should be prepared to

explain the procedure and pros and cons behind it.

Conciliation itself may expose the weaknesses of a claimant’s potential claim, and so

practitioners should be ready to manage the expectations of their client in relation to

their likelihood of success in the tribunal.

Although the use of tactics could be said to undermine the aims of the Early

Conciliation scheme, practitioners could also learn to use the conciliation process to

their tactical advantage. Negotiations before an ECSO could draw out the cracks in a

party’s case and so respondents could use the process to find out more about the

nature of the claim, and consequently allow the practitioner to set up ‘road blocks’ in

their defence.42 Similarly, claimants could use the process to investigate the chances

of settling the claim outside of the tribunal and allow practitioners to weigh up the

risks and benefits of taking the matter further.

As mentioned before above, the addition of Early Conciliation as an extra layer in the

process of bringing a claim encourages practitioners to become more focused

towards alternative dispute resolution. The Government and ACAS intended for

conciliation to act in conjunction with their encouragement of alternative dispute

resolution. As a result, mediation could be utilised to go hand in hand with the Early

41 ‘How will early conciliation changes affect you?’ available at http://www.lexisnexis.co.uk/pdf/Concillation_PSLEmployment.pdf (last visited 22 January 2015)42 Ibid

Conciliation process. Workplace mediation can be cost effective if it prevents the

matter from proceeding to tribunal. However, practitioners must also weigh up the

pros and cons of mediation and conciliation working together.

Discussing matters informally in the workplace with an independent third party can

be cheap and effective, but more formal types of mediation such as judicial

mediation, can be costly. Judicial mediation in particular still attracts a fee of £600,

whereas Early Conciliation is free. Early Conciliation could be used as a way to avoid

this fee (as well as the potential tribunal fees further down the line), however

alternatively, mediation could aid in narrowing the issues and make the likelihood of

success of Early Conciliation higher. 43

However, it could be said that mediation is of much greater use at the beginning of a

workplace dispute, rather than at a stage where a potential claimant has become

fixed in his or her opinions and is approaching ACAS to tick Early Conciliation off of

the list. According to a study by Professor Stephen Wood, employers are more likely

to use formal procedures in relation to disputes rather than resolution techniques

such as mediation. It was also commented that allowing matters to progress means

that windows of opportunity are missed and parties become entrenched. 44

As a result of the aforementioned ‘stop of clock’ effect of Early Conciliation on the

three month limitation period (which could be open to manipulation), there could be a

longer period between contacting ACAS and a matter potentially proceeding to

tribunal. This could result in memories becoming hazy and so practitioners may

43 ‘What is the role of mediation in the new early conciliation arrangements?’ available at http://www.personneltoday.com/hr/what-is-the-role-of-mediation-in-the-new-early-conciliation-arrangements/ (last visited 22 January 2015)44 ‘Mediation under-used in early stages of dispute, finds research’ available at http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2014/11/20/mediation-under-used-in-early-stages-of-dispute-finds-research.aspx (last visited 22 January 2015)

consider encouraging their clients and any potential witnesses to note down any

relevant information as soon as possible.45 Practitioners could also consider drafting

documents such as witness statements in advance to avoid the details from being

lost. This will also be especially important in the event that ACAS are contacted

towards the end of the three month limitation period, as there will only be a maximum

of one month after Early Conciliation ends for a claimant to submit their ET1 to the

tribunal. This will depend on the circumstances of each case however, and

practitioners should remain aware of the likelihood of the claimant pursuing a claim

to tribunal.

It should also be noted by practitioners representing the claimant, that an extension

of the limitation period will also require them to show that they have been mitigating

their losses during this time as well.

Practitioners representing claimants who are covered by legal expenses insurance

should make sure that they are fully up-to-date on the requirements of this cover. It is

highly probable that the client’s insurer will require an indication that there is a

reasonable prospect of success before they will permit funding, therefore taking part

in the Early Conciliation process may also be a requirement.46 Moreover, it is likely

that any settlement offers are required to be disclosed to the insurance company in

order to make sure that funds are not being wasted.47

45 ‘What is the role of mediation in the new early conciliation arrangements?’ available at http://www.personneltoday.com/hr/what-is-the-role-of-mediation-in-the-new-early-conciliation-arrangements/ (last visited 22 January 2015)46 ‘Is it worth participating in ACAS early conciliation?’ available at http://www.irwinmitchell.com/about-us/newsletters/IMploy/Is-it-worth-participating-in-ACAS-early-conciliation (last visited 22 January 2015)47 Mandatory ACAS conciliation: what do you really need to know?’ available at http://www.kennedyslaw.com/article/acasconciliation/ (last visited 22 January 2015)

Finally, in accordance with the debate on time limits mentioned previously,

practitioners should make sure that they are calculating the limitation dates correctly

to avoid claims being filed out of time. Until HMCTS or ACAS clarify whether it is

‘within a month’ or ‘after a month’, practitioners should “err on the side of caution”

and take the earlier date to avoid conflicts from arising on this issue further down the

line. 48

Case Updates

Although the scheme is still relatively new, there has already been some case law

which highlights a few of the complications with the process.

Thomas v Nationwide Building Society49

In this case, the Claimant brought a claim for whistleblowing and stated in her ET1

form that she was exempt from Early Conciliation. The Respondent Company noted

that she was not in fact exempt and her claim was therefore rejected. In the

meantime, the Claimant had contacted ACAS and tried to undertake Early

Conciliation retrospectively (the Respondent refusing to participate). The Claimant

claimed that she had rectified the defect in her claim, but the Respondent argued

that this should not be permitted. The Tribunal held that the Claimant was permitted

to rectify the defect because not allowing her to do so would be limiting her access to

justice. The date of claim was stated to be the date the conciliation period had

ended. 50

48 ‘Employment Tribunal Claims – A Practical Guide’ published by BPP Professional Education, Version 32 (page 18)

49 Thomas v Nationwide Building Society ET/1601342/14

50 ‘Early Conciliation: Claim rejected’ available at http://adviceforemployers.co.uk/early-conciliation-claim-rejected/ (last visited 22 January 2015)

This case shows that practitioners acting for the respondent should make sure that

they are checking claim forms vigilantly, as it has been proved to be possible for

claimants to slip through the cracks. Respondents should now also be aware that

failing to take part in Early Conciliation will not cause a bar for Claimants to take the

matter further, as the Tribunal may have now set a precedent for Conciliation to be

attempted retrospectively. If such an issue does arise with a Claimant’s claim, the

Respondent should make sure to contact the Tribunal without delay and vice versa.

51

Beadles v Addaction 52

In this case, the Claimant had commenced Early Conciliation against a Respondent

on the 14th of May and against a second Respondent on the 19th of June. As a result

of the differing dates, the Tribunal allowed for the limitation date to be extended to

the 12th of July, as Early Conciliation with the first Respondent ended on the 13th of

June.

The Claimant lodged an ET1 against both Respondents on 14th July (despite the fact

that the claim was out of time and the Early Conciliation process with the second

Respondent was still ongoing). This was rejected. The Claimant then lodged an ET1

for the first Respondent only and this was accepted by the Tribunal. The

Respondent sought to strike this out as it had been lodged out of time. The Tribunal

found in favour of the Respondent.53

51 Ibid 52 Beadles v Addaction [2014]53 ‘Hamlins secures key ET decision concerning early conciliation and multiple respondents’ available at http://www.hamlins.co.uk/index.php/beadle-v-addaction-learnings-about-multiple-respondents-and-early-conciliation/ (last visited 14 December 2014)

This case has highlighted the necessity for practitioners to be aware of the

complexities when dealing with multiple respondents. In order to avoid time limits

from being missed, the ET1 should be submitted at the first of the limits and further

respondents can then be added as and when they appear. Therefore despite the

potential for manipulation of time limits, this case shows that the limitation period

cannot be artificially extended by adding further respondents. 54

Conclusion

The success of Early Conciliation is likely to depend on the facts of individual cases.

The statistics do show some success in the early stages as a result of the high

uptake of conciliation, however once parties have become more comfortable with the

scheme, and practitioners have become more au fait with the process, using it as a

tactical exercise rather than a way to further negotiation and settlement may become

more common.

There are no ramifications for those who do not wish to engage in the process,

despite its ‘mandatory’ tagline. This has caused the concern that it will become just

another hurdle to cross before the inevitability of bringing a claim.55 The voluntary

nature of the scheme could appear to affirm to many practitioners the reality that the

Government are more interested in improving the nature of the economy and

reducing the workload for tribunals, rather than improving workplace relations or

showing a strong commitment to alternative dispute resolution.

54‘Claim judged out of time because of early conciliation rules’ available at http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2014/11/04/claim-judged-out-of-time-because-of-early-conciliation-rules.aspx (last visited 22 January 2015)55 ‘Just how mandatory is mandatory early conciliation?’ available at http://www.lexology.com/library/detail.aspx?g=cb249723-152a-4e81-8ed2-12b58e931571 (last visited 22 January 2015)

Practitioners will also have to work even harder to manage their client’s

expectations. For the claimant, they will have to weigh up the benefit of taking the

case all the way to tribunal against the detrimental impact of tribunal fees, by

assessing the likelihood of its success through Early Conciliation. For the

respondent, they will have to balance the benefits of offering a higher settlement

package against the risks of engaging extra fees and utilising more management

time.

Not all practitioners will be engaged by employers just for the purposes of defending

a claim. For those practitioners who are held on a retainer by companies, this new

scheme could present an opportunity for them to introduce preventative measures in

order to avoid such claims from arising in the first instance.

Guidance states that employers should not use a ‘blanket policy’ in relation to Early

Conciliation.56 Issues should be dealt with on a case by case basis because the

advantages and disadvantages of the scheme will differ in different scenarios. For

example, if a case of unfair dismissal should arise it would be beneficial for an

employer to take part in the process and garner as much information as possible

about the potential claimant’s claim. This could help them to identify weaknesses

and decide whether it would be more beneficial to offer a settlement or pursue the

route of litigation. In other scenarios where it seems clear that the claimant has no

case and has no real intention of pursuing a claim, an employer may choose to opt

out of Early Conciliation and save on wasted management time and costs. 57

56 ‘Just how mandatory is mandatory early conciliation?’ available at http://www.lexology.com/library/detail.aspx?g=cb249723-152a-4e81-8ed2-12b58e931571 (last visited 22 January 2015)57 Ibid

It must not be overlooked that in some cases, the benefits of Early Conciliation will

inevitably outrun the assigned month long period, and that starting talks could lead to

them continuing informally outside of the boundaries of the scheme. ACAS believe

that 35% of cases settled after the Early Conciliation certificate had been issued to

the parties. 58

The service is fully funded for the first 12 months of its life, and despite concerns that

ACAS may not have the resources to deal with the levels of uptake, this has been

proven wrong by the statistics.59 If the statistics continue at their current level, it

seems likely that future funding will not be an issue.

Therefore, while not all commentators may be convinced of the usefulness of Early

Conciliation, it has to be stated that there are many overwhelming advantages to

participating in the process. The statistics have indicated some early success and

while there may be some flaws in the procedure, it is a free and confidential process

which could help to reduce some of the tension between parties and clarify the

issues.

58 ‘Statistics for early conciliation: six months on’ by Richard Fox available at http://www.lawgazette.co.uk/statistics-for-early-conciliation-six-months-on/5045411.fullarticle (last visited 22 January 2015)59‘Making ACAS Early Conciliation work for you’ available at http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2014/04/01/making-acas-early-conciliation-work-for-you.aspx (last visited 22 January 2015)