Does the early bird catch the worm?

Employment lawyers have given a cautious welcome to new early conciliation procedures.

Under the new system, prospective claimants register their dispute with ACAS, which then investigates whether early conciliation can be achieved. It came into force on 6 April, and becomes mandatory on 5 May. Applicants will not be allowed to lodge a claim with the tribunal unless they have a certificate from ACAS showing early conciliation was not possible.

Early conciliation will be free of charge. By contrast, employment tribunal issue and hearing fees were introduced last April, resulting in a dramatic 79% decrease in claims.

Christina Tolvas-Vincent, partner, Bond Dickinson, says: “Early conciliation is a hurdle for the employee to jump over before they go to the tribunal, and because there is no incentive for them, there may be occasions where the employee or employer will not engage.

“Employers may know that there has been a decrease in claims since fees were introduced, and may think, why enter into negotiations when the fee may deter a claim. But, we do know that ACAS resolve an awful lot of disputes. 

“Pre-claim conciliation [a voluntary forerunner to the new system] has existed for several years and has been quite successful.”

Emma Hamnett, senior associate at Clarke Willmott, says actual participation in conciliation will remain entirely voluntary. ACAS can make “reasonable attempts” to contact the defendant, although it is not yet clear what will count as “reasonable”, she says. 

If the defendant cannot be reached, or declines to take part, then ACAS will issue an early conciliation certificate. The period for early conciliation is one month from receipt of the form, although a 14-day extension can be granted if both parties agree.

Hamnett says: “There is no uncertainty around time limits but unrepresented claimants could end up missing deadlines, and the respondent’s solicitors will run that point, so there could be satellite litigation around that.

“The new system is not going to encourage more people to bring their claims but it might encourage early conciliation. You can’t force people to negotiate against their will.”