Labour & European Law Review Weekly Issue 364 09 April 2014
Although Early Conciliation (EC) only applies to tribunal claims lodged on or after 6 May (see weekly LELR 357), transitional provisions allow prospective claimants to use the process on a voluntary basis from 6 April.
If those claimants decide to contact Acas in the period between 6 April and 5 May 2014, they then need an Early Conciliation Certificate before they can lodge their claim, even if this is before 6 May. This is because it contains a unique reference number which has to be put on the ET1 form.
Those claimants also benefit from an extension to the normal time limits (usually three months less one day from the date of dismissal or other act complained of) for lodging an Employment Tribunal claim. During the period of conciliation, which is the time when ACAS is contacted (known as Day A) and the time when the Early Conciliation Certificate is issued (known as Day B), the time limit is “paused”. The time limit starts to run again when the claimant receives their Certificate once EC has finished. Once Early Conciliation has ended the claimant has at least one calendar month in which to present their claim.
It is also important to remember that if the claim is already out of time, it remains out of time. Early conciliation will not bring the claim back in time.
However, as the responsibility rests with the claimant to ensure the claim is lodged in time, it is safest to always work to the three month less one day time limit. If in doubt contact your union representative to ensure that time has not run out.
It is also important to note that the government has amended the original statutory instrument which required claimants to name just one potential respondent (usually their employer) on their EC form, even if there was more than one. However, it has now issued an amendment whereby prospective claimants have to submit a form for each respondent. Or if they contact Acas by phone, they must name each prospective respondent in that telephone call.
Early conciliation applies to most employment tribunal claims including unfair dismissal, unlawful deduction from wages, discrimination claims, collective redundancies, breach of contract and whistleblowing.
Claims which are exempt include those for interim relief; employer contract claims; various other claims relating to appeals against improvement notices and training levies as well as references in respect of payments out of the National Insurance Fund and claims against the Security Service, the Secret Intelligence Service and GCHQ.
Jo Seery of Thompsons Solicitors commented:
“Coming on the back of fees with no obligation on the employer to conciliate – and no penalty on the employer if they don’t - it is likely that early conciliation will be just another hurdle the employee will have to overcome before being able to access justice.”