Since 2014, it has been a requirement that individuals commence early conciliation through ACAS, prior to commencing an employment tribunal claim against their employer. This process gave employees (or former employees) the opportunity to air their issues with their employers and explore a financial settlement prior to officially starting employment tribunal proceedings.
The early conciliation period has historically been set at a period of 4 weeks, with an option to extend the period by a further 2 weeks where an ACAS early conciliation officer believes the parties are close to a settlement. If, at the end of this period, the dispute has not been settled, then an early conciliation certificate will be provided to the individual, who is then able to commence proceedings against their employer by filing an ET1 claim form. This certificate confirms the early conciliation reference number, which must be quoted on the claim form. Historically, the details provided in this certificate must be correct, otherwise the claim risks rejection. For example, if the name of the employer is incorrect, the claim would be rejected unless the error is so minor that it would not be in the interests of justice to reject it. Equally, if no ACAS early conciliation reference number is provided, the claim would be rejected unless any exemption applied.
From 1 December 2020, changes will be made to amend this system. Firstly, the conciliation period is changing from 4 weeks to 6 weeks, with no possibility of an extension. Part of the reason for this change is because it was found that, due to heavy demand, some employers were only being contacted by ACAS in the final week of the conciliation period.
Additionally, ACAS may now contact the parties to correct errors on the conciliation form at any point during the conciliation period, which has previously not been possible. This, compounded with wider discretion for judges to accept claim forms with errors (rather than minor errors) means that employers may no longer rely on poor spelling or lack of knowledge of the correct legal entity to save them from claims.
One of the additional major changes to the system is that the rules have been amended to allow judges, not currently specialising in employment law, to sit in employment tribunals in certain situations. Legal officers will also be able to carry out certain functions of employment judges to determine points such as whether a claim should be rejected, or whether to allow for an extension of time.
Finally, owing in part to the current Covid-19 pandemic, changes have been made to facilitate remote hearings more effectively, specifically with regards to witnesses.
What should you be doing now?
These changes have all been made with a view to providing access to justice, and doing so in a timely manner. With coronavirus leading to job losses up and down the country, and courts being unable to fulfil their listings in person, it was inevitable that there would be a substantial backlog of cases. This has resulted in hearings being listed several years into the future. The above should hopefully streamline the process.
Employers should be aware of these changes and bear in mind that the ACAS period change and also be mindful that employees are more likely to be successful in having claims accepted, even if they have made errors in early conciliation or on their claim forms. We await to see whether the change to a 6-week conciliation period will result in more matters settling ahead of a claim being initiated.
A link to the regulations can be found here.
A link to ACAS' guidance on early conciliation can be found here.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.