The pitfalls and perils of Early Conciliation

Another ACAS Early Conciliation Case 

The Employment Appeal Tribunal have recently ruled on another case about the Early Conciliation process and clarified that there must be a separate Early Conciliation form for each respondent. However, in this case the employees claims were allowed to proceed.

The Law

Since 2014 in the majority of cases employees must obtain an Early Conciliation Certificate from ACAS before their claim will be accepted in the Employment Tribunal.

The rules governing Early Conciliation are set out in Section 18A of the Employment Tribunal Act 1996 as follows:

“(1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. …

(2) On receiving the prescribed information in the prescribed manner, ACAS shall send a copy of it to a conciliation officer.

(3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings.

(4) If –

(a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or
(b) the prescribed period expires without a settlement having been reached,

the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant.”

If the Early Conciliation certificate number is not given on the Employment Tribunal form the claim will be rejected.

If there is a minor error in relation to the name or address of the Employer on the certificate or it would not be in the interest of justice to reject the claim the Employment Judge can allow the claim.

There have been various cases about the Early Conciliation process and procedure.

The Facts

Mr V C De Mota is an LGV driver who was contracted to work for ADR Network (ADR) and assigned to work for the Co-op.

Mr V C De Mota was suspended by the Co-op following a complaint in the store he was delivering goods to. As is often the case in these situations, his employer ADR relied upon the decision of the Co-op and informed Mr V C De Mota that the Co-op had the right to refuse to have him deliver for them, effectively taking work from Mr VC De Mota. Following this decision Mr V C De Mota went to work elsewhere.

Subsequently Mr V C De Mota made a claim against both ADR and the Co-op in the Employment Tribunal claiming unfair dismissal, breach of contract, unlawful deductions from wages, holiday pay and notice pay.

With the assistance of a friend Mr V C De Mota completed the online ACAS form and put both ADR and Co-op in the box for his named employer. By putting both prospective Respondents in the same box on the same form Mr V C De Mota had not completed the process correctly which requires a separate form for each Respondent. Despite this ACAS did not reject the form and issued an Early Conciliation certificate with both names on it.

Mr V C De Mota made a claim in the Employment Tribunal completing the ET1 form adding the certificate number he had been given by ACAS.

In their responses to the claims both ADR and Co-op stated that Mr V C De Mota had not fulfilled the requirements of Early Conciliation and therefore the Employment Tribunal did not have jurisdiction to hear the claims. They also argued that Mr V C De Mota was not an employee of either company.

At a preliminary hearing before the Employment Tribunal the Employment Judge rejected Mr V C De Mota’s claim.

Mr V C De Mota appealed to the Employment Appeal Tribunal.

The Decision

The Appeal Tribunal agreed with the arguments submitted by Mr V C De Mota’s representative in that the certificate could still be effective despite naming two Respondents.

The decision outlined and reaffirmed the purpose of the Early Conciliation process, namely as a means to include a ‘structured opportunity for conciliation’.

Mr V C De Mota’s appeal was successful and his claims returned to the Employment Tribunal.

Points to Note

There have been various cases about the ACAS Early Conciliation process and in most decisions the Employment Tribunal and Appeal Tribunal have been fairly lenient in their application of the rules around Early

Conciliation so as not to present a barrier to the Employment Tribunal for employees.

However, if you have a claim against you and you believe that there is a possibility that the Early Conciliation process has not been completed correctly it is worth obtaining advice from an employment law expert in

case you may have a successful argument to prevent the claim from proceeding.

Action to Take 

1. Seek assistance if you receive an ET1 claim form and do not delay.

Case NameMr V C De Mota v ADR Network & The Co-Operative Group Limited – Employment Appeal Tribunal

 

This article was written and researched by Alison Colley, Solicitor at our Isle of Wight & Eastleigh office

 

 

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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