Changes to ACAS Early Conciliation
Nathaniel Caiden
Nathaniel Caiden considers the recent changes being made to ACAS Early Conciliation and their practical effects.
Following the Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (the “2020 Regulations”), several changes have been made to ACAS Early Conciliation and how ‘errors’ in relation to this for certificates / ET1s may be dealt with.
Standard ACAS EC Period up from 4 weeks to 6 weeks
The 2020 Regulations at reg.20, as of 1 December 2020, formally amends Schedule 1 to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (the “ACAS Rules of Procedure”) so that rule 6 provides a standard conciliation period of six weeks. This is longer than the previous four-week period that used to apply.
However, the amendment removes the provisions that allow for an extension to the early conciliation period of up to a maximum of 14 days.
The upshot is all cases will now have a 6 week early conciliation period even if Day A is before 1 December 2020.
In terms of the practical effect, this removes the need for parties to consent to extensions of the conciliation procedure (and for the conciliator to determine whether there are reasonable prospects of achieving a settlement) and makes it a simple one size fits all 6 week period. As well as hopefully facilitating settlement (as it is a longer period), it also will have a knock-on effect on any extension of time by virtue of the ACAS Early Conciliation lasting longer. The manner of the extension and its calculation however does not change, see our earlier blog which explains it in more depth.
ACAS correcting errors during conciliation
Also, as of 1 December 2020, the 2020 Regulations at reg.19 amend the ACAS Rules of Procedure by amending rule 2 to allow ACAS at any point during early conciliation to contact the prospective claimant to correct errors or obtain any missing information.
Prior to the change, the only option ACAS had was to reject the form if information was missing or continue using any information that appeared incorrect.
One of the results of this change is hopefully that there will be fewer cases of ACAS Certificates being produced that have known errors which later have a conflict with the correct information being produced in the ET1. The importance of this is that if the ET1 and ACAS Certificate do not match in respect of the name / address there is a risk that the ET1 could be rejected unless under rule 12(2A) of the Sch.1 to Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the “ET Rules”) the “Judge considers that the claimant made an error in relation to a name or address and it would not be in the interests of justice to reject the claim”. Therefore, there is now another avenue whereby a correct name / address can be provided prior to the production of the ACAS Certificate.
Errors in ACAS EC Forms
The final change brought about by the 2020 Regulations in relation to ACAS Early Conciliation is reg.7, which amends rule 12 of the ET Rules. This provision has been in force since 8 October 2020.
The change made is that there is now a mechanism whereby mistakes in relation to the ACAS Early Conciliation number can lead to a claim still being accepted if “a Judge considers that the claimant made an error in relation to an early conciliation number and it would not be in the interests of justice to reject the claim” (rule 12(2ZA)).
Prior to this change, mistakes in relation to the reproduction of ACAS Early Conciliation numbers (even missing off the odd digit) led to an automatic rejection of the claim. That meant that the deadline for presenting the claim continued to run. Given the backlog it could even take several days for an ET1 to be rejected so that by the time this was received the Claimant could then well be out of time. A good illustration of the severity of the previous rules was Zhou v North East London NHS Trust:
At first instance every argument was run by the Claimant but it failed to side step the difficulty of the ET1 missing the last two digits of the ACAS Early Conciliation number leading to its rejection. The claim was correctly resubmitted late and so the Claimant was forced to rely upon the relevant extension of time provision, not reasonably practicable.
The Trust successfully appealed UKEAT/0066/18/LA, the EAT accepted that the matter needed to be remitted for the Tribunal to determine if the solicitors fault in not properly checking the ET1 was “unreasonable” conduct. In short was the mistake made by the solicitors in not spotting the ACAS Early Conciliation number being one short ‘reasonable’. It is notable that the EAT at [43] pointed out that the ET Rules required changing so that the Tribunal could have a discretion to allow accepting of claims with these minor mistakes (as was already possible under the rules if the issue were one of the name / address being incorrect);
The remitted hearing however led to the conclusion that in fact the error was not reasonable and so the entire claim became time barred all owing to two missing digits when it was initially presented.