Early Conciliation Rules of Procedure
The amendments are contained in the Labour Courts (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020. The amendments to the Rules of Court will enter into force on 8 October 2020 and the amendments to the ACAS Early Arbitration Rules on 1 December 2020. Given that court proceedings are already listed for 2022, it is hoped that these will ease the burden on the system. However, the amendment removes the provisions allowing an extension of the early conciliation period up to 14 days. The result is that all cases will now have an early arbitration period of 6 weeks, even if Day A is before December 1, 2020. The change is that there is now a mechanism whereby errors relating to the ACAS early conciliation number can lead to a claim still being accepted if “a judge considers that the plaintiff has erred in relation to an early arbitration number and that this would not be in the interests of justice, “refuse the application” (Rule 12 (2ZA)). ACAS`s judicial procedure and early arbitration rules need to be amended to allow for greater flexibility. Acas Early Conciliation (EC) is a period during which the parties can mediate and attempt to reach an agreement without the need to file a claim with the Labour Court. Notification to Acas is a mandatory requirement, with an Acas EC certificate required to take legal action at the Labour Court. However, participation in the conciliation procedure itself is not compulsory.
Before 1. In December 2020, the period for which the European Commission could take place was one month, which could be extended by another two weeks with approval. This has now changed as a result of the amendments to the 2020 Regulation on Early Conciliation: Exemptions and Rules of Procedure (Amendment) (SI 2020/1003). Upon notification of the claimant, Acas will communicate with them and, provided the claimant agrees, with the potential defendant to determine whether they wish arbitration. If this is the case, the Community period lasts one calendar month, but may be extended once up to 14 days if the parties and the conciliator of the ACAS agree. The limitation period for applications in the relevant procedures to which the EC requirement applies shall be extended taking into account the EC time limit. In case of failure of the conciliation, Acas issues a CE certificate with a reference number. An application form is rejected by the Labour Court if it does not contain an EC reference number. If the names or addresses of the parties on the application form differ from those on the EC certificate, the application form will be rejected, unless the court considers that there is a “minor error” in the names and addresses and that it would not be in the interest of fairness to dismiss the appeal.
Prior to this change, errors in the reproduction of ACAS early conciliation numbers (even the absence of the odd number) resulted in an automatic rejection of the application. This meant that the deadline to file the claim continued. Given the backlog, it could even take several days before an ET1 is rejected, so the applicant may well run out of time when receiving the refusal. A good example of the stringency of the previous rules was Zhou v North East London NHS Trust: there are a number of important practical steps employers can take to make the most of the six-week early arbitration period, including: Given that the 14-day extension of the standard one-month period was still potentially available to parties under the old rules, the new six-week period reflects the reality of the period of a COMMUNITY period in a typical case which can be settled during the EC period. We are waiting to see whether a normal six-week period from the EC will lead to a greater number of cases leading to an advanced solution, as well as the hope behind this change. Employers who have had the misfortune of facing an employment court lawsuit know that any potential plaintiff must try to resolve their labor dispute using the ACAS early conciliation procedure before filing a claim. ACAS, which leads this arbitration process, is the independent and impartial organization whose purpose is to assist both parties to a labour dispute in reaching an agreement. In the past, there have been cases where employers have not been informed of the early conciliation procedure before the third or even fourth week of the Community period, which means that they have had only a limited time to consider their views before the application form (ET1) was submitted. The new six-week deadline should hopefully give the parties more time to resolve the dispute before the dispute and avoid a lawsuit in court altogether, which could save time, costs and the stress of litigation. Hopefully, there will be a little more time to encourage the parties to reach an early resolution, thereby reducing the burden on labour courts, which is needed more than ever as courts across the country suffer significantly from a backlog of claims due to the impact of Covid-19. Acas (“EC”) early conciliation has been available since 6 April 2014 and has become mandatory for claims filed on or after 6 May 2014. The EC procedure provides that a potential applicant notifies Acas using an EC form or by telephone before filing the relevant procedure with the Labour Court.
From 1. In December 2020, the 2020 Rules of Rule 19 amend the ACAS Rules of Procedure by amending Rule 2 so that ACAS can contact the potential claimant at any time during the early arbitration to correct errors or obtain missing information. In terms of practical effect, this eliminates the need for the parties to agree on an extension of the conciliation process (and for the arbitrator to determine whether there is a reasonable prospect of reaching an agreement) and makes it a one-size-fits-all solution for all 6-week periods. This will not only facilitate settlement (as it is a longer period), but will also have an impact on any extension of the deadline due to the time-consuming ACAS early conciliation. However, the mode of extension and its calculation do not change, see our previous blog, which explains it in more detail. The amending rules provide for a six-week arbitration period for all claims instead of the current one-month period, and the parties, as well as the ACAS arbitration agent, can no longer agree to a 14-day extension of the arbitration period. It will also be possible for Acas arbitrators to correct errors in the early arbitration form at any time during the early arbitration period. The 2020 Regulation 20, of 1 December 2020, formally amends Schedule 1 of the Labour Courts (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (the “ACAS Rules of Procedure”), so that Rule 6 provides for a standard conciliation period of six weeks. This is longer than the previous four-week period that applied before. The 1.
In December 2020, the rules of procedure for ACAS Early Conciliation (EC) were amended: Nathaniel Caiden discusses recent changes to ACAS Early Conciliation and their practical implications. The main objective of the amendments is to reduce unnecessary bureaucracy for the Court of Justice. It is also hoped that the extension of the default period will lead to better clarification of claims before filing them with the court, as settlement can be considered and discussed by both parties. However, the extension of the time limit is unlikely to have a significant impact in practice, but the parties should ensure that they are aware that the time limit is now six weeks. No changes have been made to the limitation provisions of the Employment Rights Act 1996 in terms of time limits, but given that the Acas CE time limit is used to “stop the clock”, it is likely that we will see more claims with a six-week delay between the so-called “day A” and “day B”. “Day A” is the day the potential applicant contacts Acas by phone or after receiving their CE form, and “day B” is the day the potential applicant receives the CE certificate. With recent reports suggesting that the backlog of labor court lawsuits has now reached 45,000, and when all is said about Covid levels and vaccinations, employers should not forget the importance of arbitration.
