Before an Employment Tribunal (“ET”) can accept a claim in respect of, for example, unfair dismissal, discrimination, or harassment, the Claimant must have gone through the Early Conciliation (“EC”) process. This process is, in effect, a last chance for the parties to resolve the matter before litigation is commenced in the form of the claim being submitted to the ET.
The EC process can be summarized in this way:
The Claimant submits an EC form, which includes basic information such as the claim(s) the Claimant is making, to the Advisory, Conciliation and Arbitration Service (Acas), who oversee the EC process. The form is intentionally simple to complete and therefore does not require the input of a solicitor
An Acas conciliator contacts the entity against which the Claimant is making the claim(s). This is called the Respondent, and is usually the Claimant’s current or previous employer
Following such contact, the Respondent is aware of the existence of the possibility of a claim(s), what it relates to, and the basic reasons why the Claimant considers that they have a valid claim
The Respondent informs the conciliator either that it is prepared to try to settle the claim by negotiation, or that it does not (eg it considers that the claim is without merit, or it has defences against it)
The conciliator communicates this to the Claimant. If the Respondent does not wish to try to settle the claim, the conciliator issues an EC Certificate to the Claimant. This Issuance of the EC certificate shows that the parties have complied with the process but that it was unsuccessful. The Claimant is now free to submit a claim to the ET.
If the Respondent does wish to try to settle the claim by negotiation, it will communicate with the Claimant by way of the conciliator. It is this part of the process which is the subject of this piece.
When a mediator is engaged by parties in dispute to attempt to settle that dispute, it is usually because it is qualified to do so. The 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 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 himself 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.
This inaction very often surprises parties unfamiliar with the process, who typically expect the conciliator to advise them on ways to settle the matter and avoid it going further. A frequent complaint from 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 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 claims progressing to the ET, and the statistics show that it has been largely successful in that. The number of ET claims since the introduction of the need to engage in EC in 2013 has fallen significantly. However, the constraints of the conciliators’ remit limits how successful they can be, and ironically, often leads to claimants, who expected legal advice from conciliators during the EC process, instructing lawyers instead to provide that.
Written by Chris Marshall, an employment lawyer at Meaby & Co. Should you require advice on any aspect of employment law, including the above, please contact him at email@example.com or phone on 0207 703 5034.
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