UK News

Compulsory reference to ACAS before employment claims

March 2014

Background

As part of its review of employment law the Government has already brought in a number of measures designed to reduce the number of claims brought before the UK Employment Tribunals.

As previously reported

  • In April 2012 the service qualification period for bringing claims of unfair dismissal was increased from one year to two.
  • In July 2013 for the first time fees were introduced for bringing claims in the Employment Tribunal. An initial fee of £250 for an unfair dismissal or discrimination claim is now required with a further fee of £950 if the matter is subsequently set down for hearing.
  • From July 2013 the law on discussions relating to termination of employment on agreed terms was changed to make it easier for these to take place without the risk that they might subsequently be referred to in evidence if settlement were not achieved and the claim were to proceed.

Early Conciliation

An employee who intends to bring a claim against his employer can only do so if he has first contacted ACAS and obtained a certificate from them that that the possibility of conciliation of the claim has been discussed but has not resulted in an agreed outcome.  Without that certificate the Employment Tribunal cannot accept the claim.

The new law requires that

  • The employee must contact ACAS explaining that he intends to bring a claim in the Employment Tribunal. He does not have to give any detail of the claim but must identify the Respondent – the person against whom he intends to bring it.
  • He will be asked by ACAS if he wishes them to contact the identified Respondent. The employee need not agree – if he does not then ACAS must issue the certificate.
  • If the employee does agree then ACAS will attempt to contact the Respondent. If contact cannot be made or if it is made but the Respondent does not wish to engage in conciliation then ACAS must issue the certificate.
  • If the Respondent does wish to engage in conciliation then ACAS will attempt to reach a settlement within 28 days (which may be extended by a further 14 if settlement appears close). If settlement is not achieved by the conclusion of that period, ACAS will issue the certificate.
  • Once the certificate has been issued, the employee may proceed with his claim.  This must however be against the Respondent identified to ACAS at the outset of the process.

Time limits for bringing claims – normally three months of the date of dismissal or the act(s) complained of - will be suspended from the date that the employee contacts ACAS until the certificate is issued.

Commentary

The legislation is framed in quite wide terms and there are some areas of uncertainty – what is the position, for example, where there are multiple Respondents as is often the case in discrimination claims and also TUPE transfer cases?  The position on time limits has potential for confusion too – the date on which contact is first made with ACAS and the date of the issue of the certificate will be critical and both claimants and respondents will want to be very clear about when the time limit for bringing a claim ends.

From 6 April until 5 May this process will be optional for claimants. After that it is compulsory.

Whether this will achieve the Government’s objective of reducing the number of claims further remains to be seen. The introduction of fees has certainly had an immediate impact – figures for the first six months since the obligation to pay fees was introduced show a 79% decrease in the number of claims filed with the Employment Tribunal.

We will keep you informed as this new early conciliation scheme develops.

Resources

The Employment Tribunals (Early Conciliation:Exemption and Rules of Procedure) Regulations 2014

For further information or to discuss the issues raised, please contact Emma Clark or David Widdowson on +44 20 3051 5711.

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