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Mediation certificate is the new route for curbing employment law cases

Posted on Feb 18, 2014 By In The Expert View

Sally McCartney, a partner with Kippen Campbell in Perth, and a member of United Employment Lawyers’ network, explains how new regulations are encouraging early-bird action before a costly Employment Tribunal

A new stepping stone has been placed on the path leading to Employment Tribunals. From April 2014, the bulk of claimants seeking redress for unfair dismissal must first speak to ACAS – the UK conciliation service – to see if their case can be resolved early.

The Enterprise and Regulatory Reform Act 2013 (as amended by the Employment Tribunals Act 1996 (“The 1996 Act”) introduced this requirement for all prospective claimants to contact ACAS before they are able to present a claim to the Employment Tribunal. This is now the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 and it applies to claims which are ‘relevant proceedings’ as defined by section 18(1) of the 1996 Act.

Any prospective claimant thinking about instituting proceedings before an Employment Tribunal will need to contact ACAS in advance of lodging any claim. ACAS will offer ‘early conciliation’ to try to resolve the dispute.

The regulations will, in the main, come into force on 6th April 2014 with the exception of Regulation 4 (which deals with the Secretary of State’s power to prescribe a form upon which prospective claimant must contact ACAS in relation to the requirement for early conciliation and a Certificate for ACAS to issue upon conclusion of Early Conciliation) which comes into force on 6th March 2014.

A prospective claimant must present a completed Early Conciliation form to ACAS (either online or by post) or contact ACAS for Early Conciliation by telephone.  In both instances the salient information which requires to be provided to ACAS is (1) the name and (2) the address of the prospective claimant and respondent.  If this information is not provided then ACAS may reject the application.

ACAS will make reasonable attempts to contact the prospective claimant and, if the prospective claimant then consents to ACAS contacting the prospective respondent, ACAS will then make all reasonable attempts to contact them.  If ACAS is unable to make contact with the respondent then ACAS will conclude that settlement is not possible.

The period for conciliation is up to one month starting on the date that ACAS received the completed Early Conciliation form (or telephone call) from the prospective claimant and during that time the Conciliation Officer must endeavour to promote settlement with the prospective parties.

It is important to note that following the presentation of an Early Conciliation form to ACAS, and during the course of the conciliation period, the prospective claimant’s limitation period for making a tribunal claim is put on hold. The period for conciliation can be extended on one occasion for a maximum period of 14 days provided that both parties agree to such an extension and the Conciliation Officer believes that there is a reasonable prospect of achieving settlement before the expiry of the extended period.

If at any stage during the process the Conciliation Officer concludes that a settlement of the dispute is not possible then ACAS must issue an Early Conciliation Certificate.  ACAS must also issue such a certificate if the period for conciliation (and any extension thereto) expires without settlement having been reached. The certificate will be in the form prescribed by the Secretary of State in terms of Regulation 4.

The certificate must include the names and address of the prospective claimant and respondent, the date upon which the Early Conciliation form was presented to ACAS, a unique reference number given to the case by ACAS and the date upon which the Early Conciliation Certificate was issued.

The certificate must be issued to the claimant and also to the respondent where the respondent engaged in the Early Conciliation process. Some types of cases will be exempt from this process and if so a prospective claimant will be able to institute ‘relevant proceedings’ without complying with the requirement of Early Conciliation.

The exemptions set out in Regulation 3 are:-

  • where another person has complied with the requirement for Early Conciliation in relation to the same dispute  and the prospective claimant wishes to institute proceedings on the same form as that person (Multiple Claims)
  • where the prospective claimant institutes proceedings on the same claim form as proceedings which are not ‘relevant proceedings’.
  • where the prospective claimant can show that the prospective respondent has already contacted ACAS in relation to the dispute
  • where a claim for unfair dismissal is accompanied by a claim for interim relief.
  • where the claim is against the Security Service, the Secret Intelligence Service or Government Communications Headquarters,

Conciliation will still be offered by ACAS after an ET1 has been presented. While ACAS seem optimistic about the benefits of Early Conciliation, whether or not Early Conciliation brings about a further reduction in claims being presented remains to be seen.

  • There is even a new qualification – the Certificate of Internal Workplace Mediation (CIWM), which has been rolled out for organisations wishing to handle mediations. The next CIWM accredited mediator training, a five-day course, is being run by ACAS in Glasgow, on 12 May 2014. Price £1995.00 per person VAT exempt as this is vocational training. This course attracts 29 hours of accreditation for the Law Society Continuing Professional Development (CPD) programme.