Failure to comply with Acas’ early conciliation:

13 November, 2014
by: Cripps Pemberton Greenish

Since May 2014, prospective claimants have (on the most part) had to participate in Acas’ early conciliation (‘EC’) before they can issue a claim in an employment tribunal. The idea behind the scheme is to promote settlement between the parties before they become entrenched in the tribunal process. To avoid a claim being rejected by the tribunal, the claimant must show that the EC process has been completed, or confirm that an exemption applies.

A recent tribunal decision illustrates the impact of a claimant failing to use the Acas EC scheme (Thomas v Nationwide Building Society ET/1601342/14). In this case, the claimant incorrectly stated in her claim form that she did not require an EC certificate, asserting the claim was exempt from the Acas EC scheme. The claimant’s reliance on an exemption was processed unquestioned by the tribunal, and consequently issued to her employer.

On review of the claim, her employer noticed that no EC certificate had been obtained . In its defence, the employer contested the claim and asserted that the claim should have been rejected because the claimant had failed to undertake EC, and no exemption applied. On reflection, the claimant accepted that she should have obtained an EC certificate before issuing her claim. At this point, she contacted Acas and obtained an EC certificate. She subsequently applied to the tribunal for her claim to be reconsidered, as she now had an EC certificate.

The judge agreed that the claim should initially have been rejected as a result of the claimant’s failure to comply with the EC process. Applying the Employment Tribunal rules, the judge found that because the defect had subsequently been remedied by the claimant (i.e an EC certificate had been retrospectively obtained), her claim should be accepted as at the date the EC process completed (and not when her claim was originally submitted pre EC). The judge accepted the claimant’s argument that to deny the claimant the ability to rectify a defect in this way would impede her access to justice.

The employer will now have the right to present an amended response to the claim which is likely to deal with whether the claim should be barred as out of time. The judge will then have to consider whether it would be just and equitable to extend the limitation period and allow the claim to progress.

Points to note:

Employees must ensure that they give due consideration to EC before presenting a claim, to avoid a situation where the claim is rejected, or later barred as being out of time.

Employers should review claims carefully to ensure that the EC process has been properly completed / check that the employee is relying on a legitimate exemption from the process. It appears this is not something which the tribunal will pick up on / question of its own volition.