Changes are being introduced to how the employment tribunal system is run, but what will this mean for members?
I’ve heard that the employment tribunal system is changing, so what’s happening?
From 6 May 2014, it will be compulsory for anyone wishing to make a complaint to an employment tribunal to first notify ACAS of the dispute.
This will trigger a process called early conciliation and ACAS will then offer an opportunity for the parties involved to enter into a period of free conciliation in order to try to resolve their dispute without the need to go to an employment tribunal.
Notification can be carried out via a designated online form on the ACAS website, by telephone or in writing to ACAS. It is anticipated that most notifications will be via the online form.
Will people be forced to go to ACAS then?
Conciliation itself isn’t mandatory – only notification. This means that, when contacted by an ACAS representative, a prospective claimant or respondent can decline to conciliate and the process will automatically end.
If the parties do attempt to conciliate they will be able to do so for up to one month (which may be extended by a maximum of a further two weeks if settlement is close).
The effect will be to stop the clock in relation to time limits for the period that conciliation is continuing.
What happens if there’s no agreement?
When conciliation ends without agreement being reached between the parties, ACAS will issue an early conciliation number. This number is important as an employment tribunal claim cannot be lodged without it.
The employment tribunal will reject claims without a early conciliation number.
This doesn’t sound too bad. Are there any problems?
While the aims of early conciliation may be admirable, a number of concerns regarding the practical implementation of the service have been raised by trade unions and employment lawyers.
For instance, there is no space on the notification form to provide details of a trade union – or any other – representative. This seems likely to lead to delays and potential mistakes while such information is sought and acted upon by ACAS.
Similarly, the effect on time limits is complex and has the potential for mistakes and missed deadlines -particularly for unrepresented workers.
The simplest way of approaching the issue of time limits would appear to be that, provided a claim is submitted within one month of early conciliation ending and an early conciliation number being provided, it should be in time.
However, advice should always be sought at the earliest opportunity.
A further potential problem area is where complaints are made by multiple potential claimants, such as equal pay claims.
There would appear to be two different ways in which these can be dealt with through early conciliation.
Either all complainants can give notification using a specific multiple early conciliation notification form or, alternatively, notification can be given in the name of one complainant and then the early conciliation number that’s generated can be used by all prospective claimants with the same claim.
Both options would appear to have risks associated.
So what should a steward do if a case comes up?
UNISON has updated all guidance and case documentation to incorporate this new process. Members seeking legal assistance should not trigger early conciliation themselves without first seeking advice from the union.
UNISON officers in the regions will represent members in the early conciliation process if their claim is assessed as having reasonable prospects of success by our lawyers.
Members should therefore continue to seek assistance from their branch in the usual way.