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From 6 April 2014 Claimants must try ACAS conciliation before being allowed to submit their ET1 to the Tribunal. From that date more hoops must be jumped. But are there still ways of getting around them? Let have a closer look.

From next week:

  1. The Employee must provide ‘prescribed information’(name and address of employee and employer)to ACAS.
  2. ACAS then makes contact with the employee. If, after a reasonable attempt, ACAS cannot reach the employee or the employee states thathe does not wish to proceed with conciliation, then a conciliation certificate will be issued, from which date the employee is free to issuea claim.
  3. If the employee does wish to attempt conciliation then ACAS will attempt to contact the employer. If it cannot do so or if the employer is not interested in conciliation then ACAS will issue a conciliation certificate and the employee is then free to issue a claim.
  4. If both parties wish to attempt conciliation, then there is a period of one month (which can be extended by up to two weeks with the consent of both parties). During the conciliation period, the clock is stopped for the purposes of time limits for issuing claims. Once a conciliation certificate is issued then the employee has at least four weeks from the date of the conciliation certificate to lodge a claim before the ET even if the limitation period would normally have expired before this date.
  5. If a settlement is not reached within the conciliation period then ACAS must issue a conciliation certificate so that the employee can issue his claim before the ET. If at any time during the conciliation period ACAS believes that it is not going to be possible to achieve settlement then ACAS can issue a conciliation certificate. If a settlement is reached, then a COT3 can be drawn up to settle the claims.

All very well in theory but so open to manipulation:

  1. An employee can state that they want to conciliate, but then simply string ACAS or the employer along, buying time in which to bolster a weak claim.
  2. An employer can string an employee along, in the hope of frustrating the claim or that the employee will in the meantime find another job and lose interest.
  3. Either party can simply refuse to engage in the process.
  4. Despite its intentions, there is a real risk that the process will add to legal fees. Whilst there is no requirement to have legal representation, it is likely that parties will want solicitors involved to ensure that they get the best deal, which may lead to cases being front-loaded with costs.
  5. The possibility of extending the time limit for claims means that the employers have the threat of litigation hanging over their head for so much longer.

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