Before an Employment Tribunal (“ET”) can accept a claim in respect of, for example, unfair dismissal, discrimination, harassment, or a combination of actions, the Prospective Claimant must have gone through the Early Conciliation (“EC”) process.
This has been a mandatory requirement since its introduction on 6 April 2014. This process is, in effect, a last chance for the parties to attempt to resolve their dispute before formal litigation can be commence, by the submission of a claim to the ET. The EC process is subject to time limitations, but these will be addressed in a separate article.
The EC process can be summarised in this way:
The Prospective Claimant submits an EC form, usually on-line, which includes basic information such as the claim(s) the Prospective Claimant is contemplating making and the identity and contact details of the parties, to ACAS (“The Advisory, Conciliation and Arbitration Service”), who oversee the EC process. The form is intentionally simple to complete and therefore does not necessarily require the input of a solicitor.
An assigned ACAS conciliator contacts the Prospective Claimant within a few days of the submission of the EC application in order to go through the contents of the EC form that was originally submitted. ACAS then contact the entity which the Prospective Claimant is making the claim against – known as the Prospective Respondent, and is usually the Prospective Claimant’s current or previous employer.
Following such contact, the Prospective Respondent is aware of the existence of the possibility of a claim(s), what it relates to, and the basic reasons why the Prospective Claimant considers that they have a valid claim.
The Prospective Respondent informs the conciliator either that it is prepared to try to settle the claim by negotiation, or that it does not (e.g. it considers that the claim is without merit, or that it wishes to defend any claim that is issued).
The conciliator communicates this to the Prospective Claimant. If the Prospective Respondent does not wish to try to settle the claim, the conciliator issues an EC Certificate to the Prospective Claimant. This issuance of the EC certificate proves that the parties have complied with the mandatory EC process but that it was unsuccessful. The Prospective Claimant is now free to submit a claim to the ET.
If the Prospective Respondent does wish to try to settle the claim by negotiation, it will communicate with the Prospective Claimant by way of the conciliator. It is this part of the process which is the subject of this piece.
Difference between a “Mediator” and a “Conciliator”
“Mediation” can be defined as an attempt to settle a legal dispute through the active (my italics) participation of a third party (the mediator) who works to find points of agreement and make those in conflict agree on a fair result.
“Conciliation” is an alternative dispute resolution (ADR) process whereby the parties in dispute use a conciliator, who meets with the parties both separately and together in an attempt to resolve their differences.
The distinction between these 2 definitions is more than semantic, and lies between the differing levels of proactivity of this impartial third party. The disputing parties’ expectation is that the mediator’s knowledge and experience allows it to understand the industry practices and legal issues which relate to the claim, and so advise the parties on the strengths and weaknesses of their positions. In such circumstances, the experience and conduct of the mediator will play a significant part in trying to resolve the dispute.
It is a common perception by Prospective Claimants that the ACAS conciliator will actively attempt to mediate during EC in such a manner. Our experience is that this is unusual, and that the conciliator confines themselves to passing on one party’s position to the other without advising either on the merits of the claim(s) or the prospects of success of that position. In effect, they are messengers who will neither offer legal advice on either party’s position or try to unlock a deadlocked negotiation other than by their existence in the process. ACAS are entirely impartial in this respect.
This less-proactive stance often surprises parties unfamiliar with the process, who typically expect the conciliator to advise them on ways to settle the matter to avoid it going further. A frequent complaint from Prospective Claimants is that the conciliator does not dispense legal advice in the same way as a solicitor during the process. While correct, such a complaint misunderstands the role and remit of the conciliator. Their remit is to provide a mechanism to resolve a dispute but does not extend to advising the parties on the merits of their claim or their defence. Additionally, as the conciliators are generally not legally trained, they are not legally permitted to provide such advice.
The EC mechanism was introduced to reduce the number of claims progressing to the ET, and the statistics show that it has been largely successful in that respect. The number of ET claims that have been issued since the introduction of EC has fallen significantly. However, the constraints of the conciliators’ remit limits how successful they can be, and ironically, often leads to Prospective Claimants, who expected legal advice from conciliators during the EC process, instructing a solicitor instead to provide such advice.
Meaby & Co are lawyers experienced in all employment issues. Should you require advice on the EC process, or indeed any aspect of employment law, please contact Chris Marshall on 0207 703 5034 or firstname.lastname@example.org.
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