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Mark Emery

Expert opinion: Employment law update – pre-claim conciliation

Among the many changes being introduced to the employment tribunal system over the past year, including of course fees, one of the more bureaucratic measures comes into force on April 6 – pre-claim ACAS conciliation.

For the first month this system won’t be mandatory, but it will have to be used for all claims issued on or after May 6, 2014.

What is pre-claim conciliation?

Pre-claim conciliation requires employees to submit details of their claim to ACAS to see whether their dispute can be resolved before tribunal proceedings are issued. ACAS will offer the employee a one-month period of pre-claim conciliation, which can be extended by a further two weeks.

During this time, the limitation period for the employee to present their claim will be suspended. This means that the period in which an employee must present a claim to the tribunal may be extended from 3 months to up to 4.5 months.

If the parties are able to resolve the dispute, ACAS will draw up a settlement agreement or a COT3 and issue an early conciliation certificate to conclude the dispute.

However, if discussions are unsuccessful or the conciliation is refused by either party then ACAS will send the early conciliation certificate directly to the parties.

The certificate will show that the parties have satisfied their obligations to engage in pre-claim conciliation, even though the discussions have been unsuccessful.

Implications for employers

The timing of the discussions: The fact that the parties will be expected to engage in pre-claim discussions as early as possible could mean that employers will be aware early on if they are going to face a claim.

This may affect the way in which you choose to handle the dispute, as you will know whether or not the employee is receiving legal advice. If an employee facing disciplinary proceedings contacts ACAS to start pre-claim conciliation, this could delay the on-going disciplinary proceedings and potentially prejudice your attempts to carry out a fair process.

It will be important for you to effectively balance pre-claim conciliation discussions alongside the management of the employment issue in case the dispute cannot be resolved via ACAS.

The extended limitation date: The extension to the limitation period is likely to cause uncertainty, as it will be harder for you to work out the exact date by which a claim must be issued by a particular employee.

Failure to engage in pre-claim conciliation: If you unreasonably refuse to consider pre-claim conciliation with ACAS, this could count as an aggravating feature if proceedings are issued, for which you could face a financial penalty of up to £5,000.

Failure to engage in such discussions could also lead to a costs application being made against you on the basis that you unreasonably refused to consider pre-claim conciliation.

Mark Emery is an employment specialist working with businesses, charities and individuals, providing advice on all HR and employment-related issues and acting on behalf of employers and individuals if disputes reach tribunal or court. Contact him on 01865 268 663.