Bringing a tribunal claim

Acas early conciliation — an important change to the rules

An important change to the rules was made in April 2014, with the launch of Acas early conciliation. A new first step must now by taken by the claimant before issuing any employment tribunal claim. This new first step is to contact Acas to consider early conciliation of the claim. Acas conciliation is free.

There is one important exception: the requirement to initiate Acas early conciliation before bringing a tribunal claim does not apply to claims for interim relief. Union reps should be aware that the time limit for an application for interim relief is just seven days (see Chapter 5: Victimisation, page 134).

To initiate Acas early conciliation, the prospective claimant completes a short form called an Early Conciliation Notification Form. Help in completing the form is available from Acas Early Conciliation Support on tel: 03001231122. The form can be submitted online or by post. This first step of contacting Acas by completing and submitting the Early Conciliation Notification Form is compulsory. No claim can be brought in the tribunal without taking this step. Having submitted the form, claimants then have a choice as to whether or not to participate in the Acas early conciliation process (as does the employer).

The form must be submitted by the claimant. It cannot be submitted by their rep or a solicitor. The contact details on the form must be the claimant’s own details, not those of the rep or advisor. There is no exception to this rule, not even for claimants who are mentally ill or have language difficulties. Once a claimant is contacted by Acas, they are free to give the conciliator the contact details of their union rep and ask that all negotiations be conducted through their rep.

Claimants must be very careful when completing the form, to make sure the employer is correctly named. If a tribunal claim is later made and the name on the ET1 Form (see page 32) is different from the name on the Early Conciliation Notification Form, the tribunal could reject the claim.

To bring a tribunal claim, the Early Conciliation Notification Form must be submitted to Acas within the normal time limit for bringing a tribunal claim (usually three months). If the form has not been submitted to Acas within the time limit for bringing the claim, it will be out of time and the tribunal will not be allowed to hear it. A request to extend time will be possible, but this kind of request rarely succeeds (see pages 203 and 301).

The form asks for basic details, including contact details for all the parties. It does not ask for information about the dispute itself. Where there is more than one respondent (for example, in a discrimination claim against an employer and an individual harasser) a separate form must be completed for each respondent. Each of these forms must be completed and submitted inside the three-month time limit. In practice, it is sensible to submit them all on the same day if possible.

Acas early conciliation became available from 6 April 2014, but contacting Acas became a mandatory first step in every tribunal claim from 6 May 2014. In other words, from 6 May 2014, it is not possible to issue a claim in the employment tribunal without first having submitted an Early Conciliation Notification Form to Acas and having been issued with an Early Conciliation Certificate.

Acas promises to make first contact with a prospective claimant within one working day. That first contact will be by phone with an Early Conciliation Support Officer. The claim will then be allocated to a trained conciliator who will try to resolve the dispute through a series of telephone calls to each side before the claim is issued in the tribunal.

There is good practical advice on how to prepare for a conversation with the conciliator on the Struck Out website by barrister Dave Renton of Garden Court Chambers (www.struckout.co.uk). This includes the following key points:

• make a careful note of the date and time of sending the claim to Acas, keeping a copy of any receipt and resending the claim if no receipt is received within 24 hours. You will need to prove when you sent the claim to Acas if there is any dispute later as to whether your claim was issued in time. If you use the online form, a receipt will be sent to you automatically. It will be sent to you, not your rep or solicitor;

• prepare carefully for the call from the Acas conciliator so that you can explain what your claim is about. Have your rep’s contact details ready, so that Acas can speak to your rep and not you about the employer’s proposals. Acas will not have this information unless you give it to them;

• be cautious of the danger of agreeing with Acas to settle your claim for less than it is worth. It is not the role of Acas to give you advice about your claim or its value. If you are in any doubt at all, speak to a solicitor or your rep before agreeing anything. Settlement agreements with Acas, once reached, cannot be undone.

Acas has one month to try to achieve a settlement through early conciliation. The conciliator has the discretion to extend this period for up to two more weeks if there is “reasonable prospect of achieving a settlement” and both parties agree. This might be appropriate if, for example, the parties seem near agreement, or if one party has been on holiday for part of the initial four week period. If a final settlement is reached, Acas will record it as a COT3 Settlement Agreement (see page 41).

Although initial contact with Acas is compulsory, either side is free to refuse to participate in conciliation without penalty. Where this happens, or where Acas fails, after a reasonable number of attempts, to make contact with either side, the conciliator can issue an Early Conciliation Certificate to the parties straightaway instead of waiting for the full four weeks, confirming that no settlement is possible. The claimant is then free to continue the claim as normal by issuing their ET1 claim form in the tribunal, together with the correct fee or remission application form (see below).

Tribunal time limits are affected by the new rules for Acas early conciliation. The Early Conciliation Notification Form must be submitted within the normal time limit for bringing the employment tribunal claim (usually three months). Submitting the form to Acas within the normal time period will “stop the clock” on that time period. The clock will restart, i.e. time will start running again, as soon as Acas supplies the Early Conciliation Certificate.

If there is less than one month left in which to issue the claim by the time Acas provides the Early Conciliation Certificate, the claimant is given a minimum of one month in which to issue their claim in the tribunal.

The rules also allow the employer to apply to Acas for early conciliation, where a potential claimant has not already submitted an Early Conciliation Notification Form. The most important point to notice here is that if your employer initiates the early conciliation process, there is no stopping the clock and no extension of the time limit. You do not have to submit a form if you can prove that your employer has already launched the conciliation process, but it is safest always to submit a form in the three-month time period if you are in any doubt at all. If the conciliation fails, Acas will produce an Early Conciliation Certificate in the normal way.

The Early Conciliation procedure also applies to claims where your employer is insolvent. Claimants in this situation should speak to their rep and with Acas, to make sure they name the correct respondent(s) on the form.

The introduction of early conciliation makes no difference to the continued availability of Acas conciliation throughout the claim. This service is free of charge. Acas intends to try to arrange for the same conciliator to be assigned to the claim from early conciliation through to its eventual settlement or tribunal decision. There are no fixed conciliation periods. Acas operates in England, Scotland and Wales. In Northern Ireland, conciliation is through the Labour Relations Agency.