Expert opinion: How will new employment tribunal rules effect your business?
New rules have come into force designed to reduce the number of claims taken to industrial tribunals. Rather than taking a case straight to tribunal, employees are required to contact ACAS – the Advisory Conciliation and Arbitration Service – before issuing certain employment tribunal claims.
This duty, set out in the Regulatory and Enterprise Reform Act 2013, has been voluntary since April 6, but comes mandatory from May 6.
What do these new rules mean for employees?
Employees (prospective claimants) will not be able to issue their employment tribunal claim until ACAS has issued them with an Early Conciliation Certificate. The Early Conciliation Certificate will have a unique reference number, which the prospective claimant must insert on their employment tribunal claim form when they issue their claim.
What do these new employment rules mean for employers?
If the prospective claimant does not wish to engage in early conciliation and/or does not want ACAS to contact you as the prospective respondent company then it will be unlikely that you will know about the employment tribunal claim until you receive a copy of the claimant’s claim form from the employment tribunal.
However, if the prospective claimant does wish to engage in early conciliation then you will have the opportunity to resolve the dispute before a claim is issued and avoid the cost of defending an employment case and also the time it can take up, the risks, and uncertainty of litigation and the impact of any publicity, all of which may make settlement an attractive option to you.
Alternatively, you may choose not to engage in early conciliation and wait to see if the prospective claimant is serious about issuing a claim against you. However, caution should be taken with this approach because if the prospective claimant does issue a claim you risk them making an application for costs against you because of your unreasonable refusal to engage in early conciliation.
What is the procedure?
Prospective claimants must notify ACAS of their intended employment tribunal claim either online, by post or by telephone. If this is done online or by post the prospective claimant must provide prescribed information by completing an early conciliation form. If this is done by telephone the prescribed information must be provided to ACAS who will then complete the early conciliation form for the prospective claimant.
Once ACAS has a completed early conciliation form an early conciliation support officer will make a “reasonable attempt” to contact the prospective claimant to explain the process, obtain their consent to engaging in early conciliation and seek their permission to contact the prospective respondent company.
If the prospective claimant agrees to this then their file will be passed to a conciliation officer.
If the prospective claimant does not wish to engage in early conciliation and/or does not want ACAS to contact the prospective respondent company then ACAS must conclude that settlement is not possible and issue an early conciliation certificate to the prospective claimant.
The conciliation officer must try to promote settlement between the parties during the “prescribed period”. The prescribed period is one month from the date that ACAS received the early conciliation form. However, this can be extended by a further 14 days if both parties consent.
If the conciliation officer contacts the prospective respondent company and it does not want to engage in early conciliation then ACAS must conclude that settlement is not possible and issue an early conciliation certificate to the prospective claimant.
If the parties reach a settlement they will enter into a COT3 Agreement. This is a legally binding document recording the terms on which the parties have agreed to settle.
If the parties do not reach a settlement during the prescribed period ACAS will issue an early conciliation certificate to the prospective claimant.
If you would like further information or assistance with early conciliation please contact Rebecca Peterson an employment law specialist on 01380 733300 or firstname.lastname@example.org