Mandatory pre-claim conciliation: the implications for employers

All claimants who wish to issue a claim in the Employment Tribunals on or after 6th May 2014 will have to go through an "early conciliation process" with ACAS prior to issue. The new procedure is as follows:

1. The claimant must complete an Early Conciliation ("EC") Form, or contact ACAS by telephone in respect of their potential claim(s). A separate EC Form must be completed for each respondent.

2. An EC Support Officer will make reasonable attempts to contact the prospective claimant.

3. If the claimant is willing to conciliate, then the file will be passed to a conciliator who will in turn try to contact the prospective respondent employer to ask whether they also wish to conciliate.

4. If a settlement is reached both parties will enter into a COT3 agreement; if a settlement is not reached, an EC certificate is issued. An EC Certificate can be issued at any stage of this process, confirming that the claimant has completed an EC Form, but that settlement has not been reached. The number on the EC Certificate must then be entered on the new Form ET1.

Mandatory pre-claim conciliation has been introduced as an opportunity for employers to settle potentially costly and protracted claims as early as possible. However, this aim is unlikely to be achieved in practice.

Considerations for respondent employers:

1. A prospective claimant is not required to provide details of their complaint, as they do not have to fully particularise their claim until they submit their Form ET1. As a result, if a claimant is unwilling to voluntarily disclose the details of their complaint, it is going to be very difficult for the employer to negotiate a realistic settlement on the basis of the level of risk involved in defending the claim and the likely award if unsuccessful at tribunal.

2. There are no adverse cost consequences for refusing to conciliate.

3. It is possible that an employee may commence this pre-claim conciliation process whilst internal grievance or disciplinary procedures are still running. This means that employers would need to be careful about saying things in the conciliation process which could affect the internal procedures.

4. Is the employee serious about bringing a claim? Employers may decide not to get involved in conciliation until they know whether the employee is serious about bringing a claim (which would involve paying an issue fee or applying to have the fee waived). Conciliation through ACAS can still be entered into at any point up to judgment, so employers may simply choose to wait to conciliate until a claim has actually been issued.

There will undoubtedly be situations where the employer is aware that an employee has a strong claim without them having to provide full details of their claim, and in this case it may be sensible to settle the prospective claim before it is even issued.

However, other than in this situation, there may be little incentive for employers to spend time and resources in attempting to conciliate at an early stage when it is not clear that a claim will be issued at all.