ACAS Early Conciliation – Another hurdle for Employees?

I’m not altogether against the Early Conciliation (“EC”) regime introduced in employment cases last year.

It gives the parties a chance to sort things out without recourse to litigation – I’m all for industrial resolution of disputes.

It can give an employee a “last crack of the whip” with a view to negotiating a settlement when the farcical Employment Tribunal Fees regime means that he or she can’t afford to lodge a real claim in the ETs.

Employers can benefit too, from early, economic settlement.

So I get it.  But it ought not to make rights impossible to pursue.  And in two recent cases that’s exactly how the EC scheme has operated.

In Cranwell the Claimant alleged appalling treatment: sexual harassment, demeaning, discriminatory conduct and even a physical assault.  The court was unsurprised that she was reluctant to enter into conciliation with the employer who had treated her so awfully.

But the case was kicked out nonetheless – the obligation to conciliate was absolute; even justifiable oversight was impermissible.  The claim failed.

And in Sterling the Claimant’s claim form was rejected because a typographical error meant that the EC reference number was incorrectly transposed onto the ET1 form.  The Claimant had done the necessary – ACAS had been involved – but the failure accurately to copy a reference number killed the claim.

It will be said that a case can, of course, also be made for certainty – that a rule is a rule, and exceptions make for endless arguments.

I don’t buy it.  We have some really draconian rules in the ETs about time limits – but there are exceptions.  Mistakes are not always punished with lethality.

If we are going to require an employee to jump through another hoop before starting an ET claim, let’s at least be fair about the consequences of non-compliance.  Did anyone ever intend that a typo might put paid to a perfectly valid claim?  Who benefits from that (save the windfall-happy employer)?

It brings the system into disrepute; a little discretion would go a long way.

Paul Scholey - Senior Partner

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