Resolving disputes early

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06 Jun 2014

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Over recent years, the employment tribunal process has seen a number of reforms intended to cut down on spurious claims and encourage the settlement of disputes at a much earlier stage, writes Andy Willis, Head of Litigation at Croner.

One of the key changes has been the introduction of an early conciliation stage. This is intended to encourage both parties to settle their differences amicably without the need for formal tribunal proceedings.

The process

Since 6 May 2014 those who have wanted to lodge an employment tribunal claim have had to go through the early conciliation process. Prospective claimants who haven’t gone through this process will have their claim rejected by the tribunal. In order to satisfy this requirement, prospective claimants must provide certain information to Acas. They can do this by completing an early conciliation form, or by telephoning Acas directly. The information required includes the name and address of the person making the claim and the same information for the respondent (which will typically be the employer or ex employer). Once Acas has received this information, they have a duty to:

  • make reasonable attempts to contact the prospective claimant;
  • make reasonable attempts to contact the prospective respondent (provided the claimant consents to this); and
  • try to promote a settlement between the parties during the early conciliation period (this normally lasts up to one calendar month, however a further extension of 14 days may be arranged by agreement if there is a reasonable prospect of settlement being achieved during that time).

If the conciliation offer is unable to make contact with either the prospective claimant or respondent, they will conclude that settlement is not possible and issue an early conciliation certificate to the claimant. A certificate will also be issued if:

  • at any point during the early conciliation period (or extended period) the officer concludes that settlement of all or part of the dispute is not possible; or
  • at the end of the early conciliation period (or extended period) settlement has not been reached.

Once the prospective claimant has received the certificate from Acas they can go on to institute formal tribunal proceedings.

Things you should know

  • The deadlines by which an employment tribunal claim must be presented have been extended so that the early conciliation process can take place first.
  • It is possible for prospective respondents to initiate early conciliation by contacting Acas themselves.
  • A conciliation officer may continue to try to promote a settlement even after the prescribed period has expired.

Impact

It remains to be seen whether people will engage with early conciliation. Unless both parties participate in the process, the early conciliation stage will be no more than a procedural step taken by the claimant before submitting an ET1 form. There is good news for employers though. If the claim has some merit and is something that needs to be dealt with early conciliation offers a quick and cost-effective way of engaging with the claimant and hopefully settling amicably.

Conversely, if the claim is spurious the employer can choose not to engage with the process and wait to see if the claimant is prepared to lodge a tribunal claim (having obtained the Acas certificate) and pay the required fee. Acas may well point out to prospective claimants with unrealistic expectations (e.g. those looking to bring claims outside the jurisdiction of the tribunal) that they will face difficulties. However, even in such cases Acas will still issue a certificate when the early conciliation process is exhausted, so the process won’t act as a formal brake on a claim.

How Croner can help

Even at the early conciliation stage there is a very real prospect that the case will proceed to tribunal, particularly if the claimant thinks they have a strong case.

Our team of litigation experts can assist businesses from the early conciliation stage right through to tribunal. And if you’re a client of Croner and you have an insurance product with us the service is free of charge. For more information contact us on 01455 897187.

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