ACAS early conciliation certificate can relate to a claim where the claimant resigned after the certificate was issued

Many employers will by now be familiar with the ACAS Early Conciliation (EC) process which was initially introduced in April 2014.  The concept of Early Conciliation is that ACAS will attempt to resolve any potential claim before it is formally submitted to an Employment Tribunal – indeed it is now the case that claims must have completed the process and an EC certificate issued before a claim can be lodged.

There are some exceptions to this rule – for example in cases of a claim being made against the Security Services, or another joint Claimant already having an Early Conciliation certificate in respect of the matter, however generally the Tribunals have been quite strict in imposing the rule.  It therefore may come as a surprise to learn that in the recent case of Compass Group UK and Ireland Ltd v Morgan, the Employment Appeal Tribunal held that the Claimant’s constructive dismissal claim was covered by an EC certificate that had been issued before the Claimant had resigned.

The background to the case is that in October 2014 the Claimant submitted a grievance to her employer when she was instructed to work in an alternative location in a more junior capacity to her existing role. In November 2014 she commenced the EC process and on 3 January 2015, the EC certificate was issued after no action was taken to resolve her grievance. The Claimant subsequently resigned and brought two Employment Tribunal claims – constructive dismissal and disability discrimination.

The Respondent initially argued that the Claimant’s constructive dismissal claim was not properly instituted as she had not followed the EC process given that she resigned after the EC certificate had been issued. They further submitted that any cause of action occurring after ACAS had been notified, even in circumstances where it relates to facts occurring during the EC process, could not be capable of being pursued without ACAS being notified. At first instance the Employment Tribunal found in favour of the Claimant and held that there was a connection between the matters in dispute during EC and the matters in dispute in the claim itself.

The Respondent subsequently appealed to the Employment Appeal Tribunal (EAT), this time stating that the cut-off date after which the EC Certificate does not extend is the issue of the EC Certificate (not the date of notification to ACAS as was the argument to the Employment Tribunal).

ACAS early conciliation in practice

I have expressed my reservations about whether ACAS early conciliation will bring any significant benefits to dealing with employment tribunal claims. However, the Scheme is now operational and it is therefore important to know how it works in practice. The Scheme started on 6 April and is currently voluntary but from 6 May it will be compulsory.

A major concern is how the Scheme will impact on the very strict and short time limits within which claims must be brought: generally three months.

the form
Before a claim can be commenced it is necessary to provide notification to ACAS and to provide basic details including contact information. The easiest way to do this is by going to the ACAS website at www.acas.org.uk/earlyconcilation. As is increasingly the case when using such websites the enquirer is then taken through a couple of pages, including a lengthy explanation of the benefits of the Scheme before arriving at the form itself. Before proceeding to fill out the form, and in a rather schoolmasterly manner, the enquirer is then required to tick a box to say that they have read and understood the previous page.

The form itself is pretty straightforward. As well as providing name and contact details, the enquirer is asked to supply the employer’s postcode in order to trigger a business address search. Having tried this out it works quite well for medium and larger sized businesses. However, small businesses might not be so readily found and, of course, any error in inputting the postcode could produce false results. There is also an option to add the employer’s telephone number. As for the employment itself the enquirer is asked to provide the start date, end date, job title and the date of the event which is the subject of the claim.

Interestingly, the form also indicates that contact will be made using the telephone number(s) provided. However, there is no obligation to provide a telephone number or an email address so this may lead to practical difficulties.

the timescale
Notification needs to be provided to ACAS within the normal time limit for bringing a claim, for example three months less one day for unfair dismissal claims. In one sense this makes the process easier for claimants since there is no need at this stage to set out full details of the claim in an ET1.

shall I just say sorry?

Back in 2009 I reported about the problems being encountered by ACAS in trying to deal with conciliations which had been brought in as part of the process of dealing with tribunal claims. Primarily as a result of lack of resources there were significant delays. The truth is that the scheme didn’t work and most people paid no more than lip service to it.
Undeterred by previous experiences the Government has ploughed on with its plans to reintroduce ACAS conciliation and the Enterprise and Regulatory Reform Act 2013 (Commencement No.5, Transitional Provisions and Savings) Order 2014 (SI 2014/253) brings into force, from 6 April 2014, compulsory conciliation. The Early Conciliation Rules of Procedure are set out in the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations.
So, from 6 April all potential Employment Tribunal and Employment Appeal Tribunal claimants will be obliged to don their conciliatory hats and engage in an attempt to reach a settlement with their employers via ACAS before bringing their claims. Unsurprisingly ACAS is extolling the virtues of this process on the basis that it will be impartial, free and could avoid the expense of going to tribunal. All the discussions will take place “without prejudice” and so any matters discussed cannot later be relied upon in tribunal. They have gone so far as paying for Goole Ads in the run up to implementation
Settlement talks should be attempted for a month, with the potential to extend for a further two weeks. The clock will stop running whilst talks are under way so far as time limits for bringing claims is concerned although time will continue to run in circumstances where a prospective respondent contacts ACAS for early conciliation.
How practicable all this is remains to be seen. Can we really expect that when a matter has been fully explored in conciliation talks that, if those talks fail, compromising details revealed in confidential discussions will not be used? Clever cross questioning will easily winkle out this information if the other party knows it exists. So far as employees are concerned, they are likely to be at a disadvantage by virtue of inexperience and lack of fire power at that stage. Companies with HR departments and access to lawyers will be fully prepped. However, the process will buy claimants some time. If they use this time wisely, they will be putting their claim together throughout the conciliation period, picking up useful points that have come their way by virtue of the process.