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Laurie Anstis: Early Conciliation

Thursday 18 December 2014

Laurie Anstis, Chair of the Law Society's Employment Law Committee, looks at how early conciliation has worked in practice so far.

 

Laurie Anstis

Laurie Anstis is Chair of the Law Society's Employment Law Committee and a senior associate with Boyes Turner LLP.

Laurie Anstis blog profile

Lawyers are suspicious of new schemes.

Lawyers also remember the statutory dispute resolution procedures - a grand new vision for resolving employment disputes which became more famous for the disputes it created than for the disputes it resolved.

This lead many lawyers to be wary of the new Early Conciliation rules. Would they turn out to be a repetition of the statutory dispute resolution procedures - well intentioned but causing far more problems than they solved?

It was encouraging that early conciliation was to be handled by Acas, whose conciliators have a strong reputation. However, it remained a considerable challenge for Acas to take on cases at such an early stage. It is a tribute to the leadership of Acas and to its individual staff that early conciliation has been able to work at all, given the challenges that come with developing such an ambitious new program.

There remain, though, potential problems when early conciliation leaves Acas and moves on to the more formal environment of employment tribunal.

For instance, the rules require notification under early conciliation for every respondent to an employment tribunal claim. This can cause difficulties for a claimant where they have only undertaken early conciliation in respect of, say, a transferor and not a transferee on a TUPE transfer, or have only mentioned their employer and not individuals who they later want to bring a discrimination claim against.

The rules also require the name of the respondent to the claim to be the same as that on the early conciliation certificate, with very limited opportunities for the employment tribunal to make corrections.

These two requirements will have caught out many claimants.

There are also the very difficult and complex provisions on extension of time, which skilled lawyers find difficult to understand - let alone people who are acting for themselves. Both claimants and respondents need to be able to understand those rules.

We are starting to see employment tribunals come up with ways of mitigating the strictness of the rules. In Thomas v Nationwide Building Society, an employment tribunal found a complex means of eventually accepting a claim when early conciliation was carried out after submission of the tribunal claim form. Employment tribunals also retain a discretion to add respondents to claims at a later stage without the need to go through early conciliation - but whether this can be relied upon in any particular case will always be uncertain.

Early conciliation has worked better than many lawyers feared. However, there remain potential difficulties with the early conciliation rules when claims arrive at the employment tribunal. If early conciliation is to be mandatory then there must be consequences of a failure to comply with the rules, but the system will fall into disrepute if the complexity of the rules becomes an obstacle to justice being done.

More blogs on the first six months of Early Conciliation:

1 Comment

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  • Posted by ADEYINKA  |  21 April 2015, 2:13PM

    My case has already done through the ACAS process and while process failed to resolve the issue, we have now got the ACAs certificate issued and i am finding it really had to get the solicitor to help fill this application with the tribunal and can someone from process this application with the Tribunal on my behalf?