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Employee disputes – the Early Conciliation process

An employment tribunal hearing can cost a business dear, in terms of time, legal fees, reputation (“there’s no smoke without fire”) and compensation.

From 6 May 2014 the “Early Conciliation” process has become mandatory in employee disputes.  Some commentators have seen this as an extra burden on employers.  However, it is worth understanding on whom it is mandatory, and in what circumstances.  Used wisely it may, arguably, benefit everyone.

Until last year, many employers took the view that the tribunal system was, at one extreme, the workplace equivalent of the whiplash and crash for cash motoring scams.  Basically, any employee could take a grievance (or supposed grievance) to the tribunal, without personal cost.  Meanwhile, the employer was faced with substantial outlay and risk, even if they felt the whole thing was partly or wholly spurious.  In many cases it was worth making a settlement just to avoid the process.

The introduction of tribunal fees payable by claimants, in July 2013, went a long way towards curing the perceived structural fault.

Nevertheless, until 6 May an employee could send a claim form to the tribunal and their case would be heard.  Now, before an employee can pursue their claim at the tribunal, they must first give notice to the Advisory Conciliation and Arbitration Service (Acas).  Acas will assign it to a conciliation officer, who has a statutory duty to try to find a resolution within one month.  Where this is impossible, the officer will issue a conciliation certificate.  Only after a claimant has been through those steps can they lodge their claim form at the tribunal.  If they do not provide the conciliation certificate, the tribunal will reject the claim automatically.

While it is mandatory for the employee to go to Acas before the tribunal, employers are not obliged to engage in the Early Conciliation process.  Therefore, if Acas contacts the employer about a potential claim, the employer does not have to respond at all.

It should be understood that the tribunal can take an employer’s response (or lack of it!) into account in approaching their decision.  So each case must be considered carefully on its merits.  But it is reasonable to expect that, since the introduction of charges, those claimants who don’t have trade union backing, extensive personal resources, or legal expenses insurance, may well give up unless they are really sure of their ground.

On the other hand, if an employer has made an accidental error (in terms of employment law), Early Conciliation could resolve the problem quickly and cost-effectively.

Our suggestion is that all parties should look upon Early Conciliation as a real opportunity to understand the other side’s position.  Employers may then, at an early stage, decline to commit further to the process, as may be appropriate in the circumstances.


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