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Tribunal rules open the door to conciliation

REGULATIONS will come into force on Sunday that mean it will not be possible to lodge an employment tribunal claim without an Early Conciliation (EC) certificate issued by Acas.

The purpose of EC is to give the parties concerned an opportunity to conciliate a settlement of a dispute and prevent the tribunal claim from being lodged.

A prospective claimant will either have to complete an EC form and present this to Acas (online or by post) or telephone Acas, in which case Acas will insert the relevant details into the EC form.

The prospective claimant is only required to provide Acas with brief details about their claim.

On receiving the completed EC form, Acas is under a duty to make reasonable attempts to contact the prospective claimant and if he or she consents, Acas must then make reasonable attempts to contact the prospective respondent.

Neither party will be legally obliged to take part in the conciliation process. If Acas cannot contact one or both parties or neither party wishes to enter into the process of conciliation, then Acas will conclude that it has not been possible to reach a settlement and issue an EC certificate.

The claimant then uses the EC certificate when lodging their complaint with the tribunal.

The effect of Early Conciliation is that this will trigger a "stop the clock" mechanism in the time that they have to lodge their claim of up to one month, with a provision for an extension of two weeks if Acas believes that the claim is close to settlement.

Acas's role is to guide on the law, timescales and so on but its role will not be to make decisions based on the merits of the case.

There will be transitional provisions covering the period from Sunday to May 5, during which time the new scheme will be available to prospective claimants and it will be mandatory on or after May 6.

We understand from Acas that it will issue a COT3 Agreement if settlement can be reached which is binding on both parties. However, the cautionary note here is that employers will need to understand the details of what they are settling to ensure that the COT3 covers what it is intended to cover and does not leave a back door open for a claim to proceed.

What does this mean for employers?

Rather than waiting for an ET1 form to arrive on their desks, employers will now wait on contact from Acas to inform them that an employee or ex-employee has completed an EC form.

If the employer does agree to enter into conciliation, there are a couple of identifiable cautionary notes.

One is that an employer should not feel under pressure to settle if they believe they have done nothing wrong – this should be a balanced decision taking all factors into account and not one that is rushed and based on making the immediate problem go away or throwing cash at it.

The other is that the employer should understand the detail of what the dispute is about before agreeing a settlement. The employer must ensure that it doesn't walk straight through that open back door mentioned earlier for the employee to continue to bring a claim.

Tip of the week

Good employment practice when dealing with matters of performance and conduct, grievances and so on will always be better than allowing an issue to reach a point whereby an employee feels they have some justification to make a claim.

Source: Nottingham Post

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