ACAS Early Conciliation Can Happen Before the Event
Under section 18A(1) Employment Tribunals Act 1996, a prospective claimant to an employment tribunal must first contact ACAS. There’s no obligation to actually engage in conciliation, but this formality needs to be satisfied before a relevant claim can be made to an employment tribunal.
But can ACAS Early Conciliation, and the certificate that this has been satisfied, actually include events that have yet to happen, particularly given that this could not be fulfilled for an event that has not yet occurred? With a deadline of less than 3 months after the event for a tribunal claim to be made (extended where necessary for the time spent in conciliation), this is an important question. And the Employment Appeal Tribunal (EAT) have answered it, in the affirmative – a conciliation certificate can cover events that haven’t happened!
In the case of Compass Group UK & Ireland Ltd v Morgan, the EAT decided that an early conciliation certificate could cover future events – in this case a constructive dismissal that had not happened at the time the conciliation had concluded, but did happen more than two months after the conciliation was concluded. (The conciliation certificate was issued on 3 January 2015; the claimant resigned on 18 March 2015; a claim to the employment tribunals made on 20 March included the constructive dismissal – which was accepted as being a matter addressed by the conciliation.)
The reasons for this are the lose terminology in the law – found to be deliberately flexible language used by Parliament, capable of broad meaning. With a link between the proceedings – the employment tribunal claim – and the matters that exist at the time ACAS issue a Conciliation Certificate, as long as these are related, a further conciliation (or certificate) is not necessary.
In Morgan, the claimant brought proceedings in relation breaches of the implied term of mutual trust and confidence, and this broad complaint did exist at the time ACAS was first contacted, so clearly existed at the time the certificate was issued. The fact this alleged breach subsequently led to a dismissal does not require the claimant to return to ACAS before lodging a complaint to an employment tribunal.
ACAS Early Conciliation is not obligatory for either side – an employer may never be afforded the opportunity to engage in conciliation before a tribunal claim is lodged. But if contacted, it’s difficult to engage practically in conciliation if the employer doesn’t even know what this might cover – a dismissal could attract a much greater award than a complaint that a grievance hasn’t been dealt with. And if the events haven’t even happened yet, it’s even more difficult to know how to engage constructively in conciliation.
With future events unknown, it’s practically impossible for anyone to promise they can offer meaningful help beyond what is known, but a fresh look at circumstances can do no harm, and may foresee what’s to come. It costs nothing, and comes with no obligations, for Employment Law Clinic to look over your case, so if you need advice for an early (or premature) conciliation, get in touch.