Q: What happens if a Claimant does not comply with the ACAS Early Conciliation Rules before bringing their claim? A: The Tribunal must reject the claim under rule 12(2) of the Employment Tribunal Rules (“the Rules”)
As a brief reminder the Rules came into force in May 2014 as part of the early conciliation (“EC”) arrangements. Before a Claimant can submit their claim they have to go through the following steps:
- They must contact ACAS to supply certain information. This then “pauses” the time limit for bringing a claim (usually three months from the date of termination of employment or the act complained of).
- ACAS sends this information to an early conciliation officer.
- The early conciliation officer makes attempts to contact the parties to promote settlement.
- If settlement is not reached the officer will issue a certificate to that effect to the Claimant who may then use the reference number on the certificate to bring the claim.
In the case of Thomas -v- Nationwide Building Society the Claimant presented a claim regarding a whistleblowing complaint to the Tribunal. However, the Claimant had not provided a certificate from ACAS confirming completion of the EC procedure. Mistakenly the Claimant’s solicitors considered that this type of complaint was exempt from the EC procedure but later accepted that it was not.
During this preliminary hearing the Claimant accepted that he did not have the certificate but since lodging the claim had in fact obtained a certificate from ACAS and therefore complied with the procedure retroactively.
The judge allowed the Claimant to proceed with the original claim as there is a provision in the Rules that if a mistake is rectified the claim will be treated as having been presented on the date of such rectification (so in this case the date of the certificate).
The employer argued that his approach would ‘drive a coach and horses’ through the EC process but this was rejected as the judge decided that the EC process had been complied with (albeit belatedly) and the Claimant was allowed to re-submit the previously rejected claim without incurring a further fee.
Employers should be aware of this provision and urged to take advice if they are contacted by ACAS as part of the EC process. The Rules in this area are new and sometimes complex (especially surrounding time limits) and it may be that the approach of different Tribunals varies as they get to grips with the new Rules.
If you would like further advice about employment tribunal claims, please contact a member of the Employment team.