As we have previously reported, people who want to bring a claim in the Employment Tribunal have, since May this year, had to go through ACAS early conciliation. The idea behind the scheme is that cases which would otherwise go to Tribunal can be settled between the parties at an early stage. It is only once the employee has taken part in early conciliation that they will be allowed to issue proceedings in the Tribunal. Once they have taken part in early conciliation then, assuming that there is no settlement, ACAS will issue a reference number to the potential claimant. They then need to insert that number on their Tribunal claim form, and if there is no number the Tribunal will simply reject the claim.
There has never been any obligation on the employer to participate in the process, and anecdotal feedback from ACAS officers suggests that quite a few refuse. However, what was not clear was whether there was any obligation on the claimant to at least go through the motions of trying to reach a settlement. The Employment Tribunal in Cardiff has now held in the case of Thomas v Nationwide Building Society  that even if the claimant has absolutely no intention of trying to reach a settlement, by contacting ACAS and completing the early conciliation form they are deemed to have taken part in the early conciliation and as such are entitled to be issued with a reference number to allow them to submit a claim to the Employment Tribunal. This approach does seem to rather undermine the whole concept of early conciliation, but it may also simply recognise the employee’s pragmatism that in this particular case the employer would not have wanted to settle anyway! It would of course be open for the employer to seek costs against the employee if she subsequently lost her claim, and her lack of good faith in the early conciliation process would no doubt be a factor which the Tribunal would take into account in determining whether to award costs, and if so how much to award.
What is also interesting about this case is that initially Mrs. Thomas’ claim had been rejected because she had failed to go through the early conciliation process and did not have a reference number, but the Tribunal allowed her to comply with the procedure retroactively. This seems to be completely at odds with the intention of the early conciliation process, and it will be interesting to see whether that approach would be upheld on any appeal.
It is still very early to assess the impact of early conciliation, and of course there have been several other changes to the Tribunal process in the last couple of years which make statistical comparisons of the number of claims filed between different periods difficult. However, initial indications from the Southampton Tribunal region suggest that 17% of cases brought to early conciliation settled, and that of the cases where a reference number was given so as to allow the potential claimant to proceed to Tribunal, 19% of potential claimants indicated they would not do so. It is not clear why – some will probably be because the claims have little merit, but it is also likely that the high fees which need to be incurred in order to lodge a claim in the Tribunal will deter many claims which may have merit.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).