As part of its plans to make the tribunal system more efficient, the government decided to impose a duty on the parties and ACAS to attempt EC in relevant proceedings before a tribunal claim can be issued. Relevant proceedings will be the majority of tribunal claims including unfair dismissal, discrimination and claims under the Transfer of Undertakings (Protection of Employment) Regulations ("TUPE"). The mandatory EC procedure involves:
1. A prospective claimant who wants to institute relevant proceedings must provide "prescribed information" to ACAS either by submitting an EC form or by telephone. In relation to cases where there is more than one potential respondent, a prospective claimant must submit a separate EC form for each potential respondent (or, if notifying ACAS by phone, identify each potential respondent over the phone).
2. An ACAS early conciliation support officer ("ECSO") will make contact with the prospective claimant and (if the prospective claimant agrees) pass his/her information on to a Conciliation Officer ("CO"). The prospective claimant is not obliged to proceed with conciliation.
3. The CO will contact the prospective claimant and, subject to the prospective claimant agreeing, try to promote a settlement between the prospective claimant and the employer within the "EC period". The EC period is one calendar month from the date on which the prospective claimant made initial contact with ACAS.
4. If a settlement is not reached, because:
(a) it is not possible to contact the parties;
(b) the parties do not wish to participate in EC;
(c) the CO considers that settlement is not possible; or
(d) because the EC period expires,
an EC certificate must be issued containing a unique reference number. Employees will need this unique reference number to submit a tribunal claim.
The introduction of EC will not change the services ACAS offers parties after any claim is issued. ACAS has published new guidance which outlines the features of EC. In particular, it highlights that EC can help by giving the parties a clearer idea of the strengths and weaknesses of the potential case and explore the options for resolving their differences. ACAS also states that, if the parties can settle their differences, this will avoid the time, expense, risk and stress of going to tribunal.
Some employers may be reluctant to engage in EC, preferring instead to wait and see if employees are prepared to pursue the matter further by paying a tribunal fee and commencing litigation. However, the opportunity to resolve matters at an early stage should not be ignored. It remains to be seen how successful the new process will be and both ACAS and EC will be under some scrutiny over the coming months.