Written by Rob Collier-Wright

From 6 May 2014, prospective claimants will be required to enter into a mandatory four-step “early conciliation” procedure aimed at achieving settlement before they can commence proceedings against their employer in the Employment Tribunal (ET). However, employers should be aware of the provisions even sooner, as transitional provisions mean that the early conciliation scheme will be available to employees on a voluntary basis from 6 April 2014.

The four steps set out in a new section 18A of the Employment Tribunals Act 1996 are as follows:

  1. the prospective claimant must provide the parties’ names and contact details to the Advisory, Conciliation and Arbitration Service (ACAS);
  2. ACAS will make initial contact with the prospective claimant to confirm whether he wishes to engage in early conciliation and, if he does, assign the matter to one of its conciliation officers;
  3. the conciliation officer will then “endeavour to promote a settlement” between the prospective claimant and the employer; and
  4. if the conciliation officer considers that settlement is not possible, or if settlement has not been reached within a certain period (likely to be a month), the prospective claimant will be issued with a certificate allowing him to submit a claim to the ET.

The time limit for commencing proceedings in the ET will be put on hold while early conciliation is attempted, so that the prospective claimant does not lose the opportunity to bring a claim during the early conciliation process.

It remains to be seen how successful the early conciliation scheme will be, not least because the statute does not impose any adverse consequences on either party refusing to engage in early conciliation. It appears, on the one hand, that prospective claimants may be keen to try to settle potential claims via early conciliation to avoid the ET issue fees introduced in July 2013. Conversely, employers may avoid settling via early conciliation in order to sound out whether prospective claimants are serious about issuing proceedings.