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Can a claimant bring an employment tribunal claim without going through Early Conciliation?

Hopefully, most of the employers reading this will not yet have experienced “Early Conciliation”!

If not, you may not be familiar with this mandatory requirement, which the government introduced in April 2014 in an attempt to discourage prospective claimants from bringing employment tribunal claims, or at least to encourage them to consider resolving their disputes “amicably” first.

Prospective claimants must now attempt Early Conciliation (“EC”) through ACAS before they can file an employment tribunal claim, unless they fall within one of 5 narrow exemptions. The exemptions include where the claim is against the Security Service, Secret Intelligence Service or GCHQ, so that may be commonly relied on in Cheltenham! However, in most cases, EC is likely to be required.

EC involves a prospective claimant sending certain information to ACAS, who allocate the case to one of their conciliators. The conciliator then has one month to try to encourage settlement between the parties (which can be extended (once) by a further two weeks if all parties agree). If the conciliator cannot achieve a settlement, they will issue an EC certificate to the prospective claimant, who can then file a claim.

Without an EC certificate number or a valid exemption (which must be identified on the claim form), a Tribunal is obliged to reject the claim. This requirement was tested in a recent case.

In that case, a prospective claimant was alleging sexual harassment and physical abuse. Due to the sensitive nature of her allegations, she did not contact ACAS to go through EC. As she had not done so (and did not fall within any of the exemptions), the tribunal rejected her claim. The claimant appealed this decision. She referred to the tribunal’s discretion (under Regulations governing tribunal practice) to take whatever action it considers “just” where a party fails to comply with a procedural requirement, which might include waiving or varying that requirement. She argued that the tribunal should have used that discretion to waive the requirement for her to go through EC.

Although the Employment Appeals Tribunal sympathised with the claimant and understood her reluctance to contact ACAS, they agreed with the tribunal’s decision. The claimant had not satisfied the EC requirement, and she was not covered by an exemption. Her claim, therefore, had to be rejected. The tribunal’s discretion could not be used to avoid EC.

What does this mean for your business?

Whilst that case was a sad one, it is helpful for employers that the mandatory nature of EC has been re-stated.

This means that, in virtually all cases, you will be contacted by ACAS regarding a potential claim from one of your workers, employees or ex-employees before a claim form arrives on your doorstep.

This forewarning may enable you to resolve or settle a dispute before a claim is brought, which saves time, legal costs and stress for everyone concerned, especially as claimants often become more emotional and entrenched about the issues involved once they have paid a tribunal fee and filed a claim.

What do you need to do next?

If you are contacted by ACAS about a potential claim, contact us to discuss your options, as EC is often used quite tactically by prospective claimants and how you respond is key.

The fact that EC has begun does not mean that an employment tribunal claim will follow. Many prospective claimants use EC as a “warning shot” to their employer or ex-employer, believing that this will trigger a settlement but never intending to stump up a tribunal fee to actually file a claim. The statistics produced by ACAS following the first year of EC support this.

We can talk through your potential options and tactics to hopefully help you ward off a claimwith minimal stress, hassle and cost.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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