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Think Ahead with ACAS Early Conciliation
Early conciliation through ACAS was introduced in April 2014 by the Enterprise and Regulatory Reform Act 2013 (“Act”) as a way for parties involved in a dispute potentially leading to proceedings in the Employment Tribunal to be able to conciliate with the help of a conciliator from ACAS. Following an initial period where early conciliation was voluntary, the process was introduced in such a way that, apart from in exceptional circumstances, a person wishing to bring a claim in an Employment Tribunal had to contact ACAS to begin the process of early conciliation regarding their dispute and obtain an early conciliation certificate before any claim could be issued.
Early conciliation begins when a prospective claimant contacts ACAS and provides certain basic information, such as names of the parties. There is no requirement to provide specific details about particular claims that a person may have against their employer.
So what happens when an early conciliation certificate is issued by ACAS, and then the employee resigns and claims constructive dismissal? Does the early conciliation certificate cover that constructive dismissal claim, or does the employee need a new early conciliation certificate?
This was considered by the Employment Appeal Tribunal (EAT) in the case of Compass Group UK & Ireland Ltd v Morgan .
Mrs Morgan was employed by Compass Group and, in October 2014, she submitted a grievance after she was moved to a different location in a less senior role. She contacted ACAS about these issues while she was still in employment, and she obtained an early conciliation certificate on 3rd January 2015. She resigned from her employment on 18th March 2015, and issued a claim in the Employment Tribunal for constructive unfair dismissal.
Compass Group argued that Mrs Morgan could not pursue her claim because she had not satisfied the requirement to undergo early conciliation beforehand. Her dismissal had not yet taken place at the time of the early conciliation, as she had not yet resigned, and it was argued that any claim arising after the date of the early conciliation certificate should have been separately notified to ACAS.
The Employment Tribunal allowed Mrs Morgan’s claim to proceed on the basis that it related to a sequence of events that were in issue between the parties at the time of the early conciliation process. Compass Group appealed this decision to the EAT.
Decision on Appeal
The EAT identified that there was no requirement in the Act for a prospective claimant to provide ACAS with details of an actual or prospective dispute or cause of action. The Act only requires the prospective claimant to provide prescribed information relating to any matter, such as the names and addresses of the prospective parties.
The EAT considered the term, “matter”, as being broad and flexible, and held that, provided the claims issued in the Employment Tribunal related to the matters properly notified to ACAS, the claim could proceed.
In the circumstances of this case, Mrs Morgan’s constructive unfair dismissal claim was held to be related to a sequence of events that were in issue at the time of the early conciliation process, so her claim was allowed to proceed. It did not matter that she resigned after the early conciliation certificate had been issued.
Advice for Employers
Early conciliation can be a useful tool for employers as it operates in such a way that employers will be wise to the possibility of a claim being pursued in the future. It also gives the parties an opportunity to resolve any issues in dispute without having to go through the Employment Tribunal process.
While this appears to be a helpful decision for claimants, it does not mean that it will be possible to rely on an early conciliation certificate when bringing unrelated proceedings. The Employment Tribunal will still be required to determine whether proceedings are related to the matters notified to ACAS and, if in doubt, employers should always continue to bring this to the attention of the Employment Tribunal where it is in doubt.
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