A sting in the tail: ACAS Early Conciliation requirements take their toll on unwary Claimants

The ACAS Early Conciliation Scheme came into force in April 2014 and has been lauded for its part in the significant reduction in Employment Tribunal claims in the last year.

However, there is a sting in the tail, as two recent cases in the Employment Appeal Tribunal demonstrate.

The rules of the Scheme state that all potential Claimants must notify ACAS of their potential claim before they can issue it in the Employment Tribunal. ACAS then has a statutory duty to attempt to resolve the matter for up to one month. If the matter cannot be resolved at that stage, ACAS will issue a certificate confirming that the Claimant has complied with the requirement to use the Scheme. The certificate includes an Early Conciliation number which must be included on the ET1 claim form. Conciliation itself is voluntary, but notifying ACAS is not (with a small number of exceptions).

So far, so straightforward. However, it seems that parties still try to issue their claims without complying with this step. The case of Cranwell v Cullen confirms that this will not fly with the Tribunal as the case was rejected as the Claimant had not notified ACAS of her claim prior to issue. The Claimant appealed on the basis that this was unfair and that the Tribunal ought to have used its discretion to permit her claim to continue. The Employment Appeal Tribunal considered that no such discretion existed, despite stating that they were hugely sympathetic to the Claimant's plight, and despite noting that the ACAS conciliator would almost certainly have agreed that conciliation was not appropriate in her particular circumstances.

So, plainly there is no getting around participation in the scheme. Lesson one for employment lawyers: make sure you advise your client of this obligation at the outset and impress upon them that it is vital that they notify ACAS of the matter, whether they intend to attempt conciliation or not. Limitation periods in employment matters are typically only three months so usually time will be of the essence. Failure to advise of the limitation deadline is a perennial professional negligence issue but employment lawyers should add details of the ACAS Scheme to their checklist of initial advice to be provided.

However, there is also a lesson two: don't assume that by making the notification you've done the hard part. It's not over yet. Once you have received the Early Conciliation number, it must be correctly entered onto the ET1, as the Claimant in Sterling v United Learning Trust found to her detriment. Mrs Sterling submitted her ET1 four days before the expiry of the limitation period but missed several digits off the Early Conciliation number. The Tribunal returned the ET1 to her two days later but sent it to the wrong address. Once it made its way to her, she resubmitted it immediately, but by this time limitation had expired and her claim was rejected. The Employment Appeal Tribunal agreed with the first decision and concluded that the Tribunal was entitled to reject the ET1 in such circumstances, despite again having considerable sympathy for the Claimant. However, it did note that the Claimant would have been entitled to apply for the decision to be reconsidered (although the hapless Mrs Sterling's representatives had failed to make any such application).

This is a timely reminder that the Tribunals are just as strict at enforcing minor errors as the Courts (see the equally hapless Defendant whose counterclaim was struck out because it was sent to the wrong email address). Employment lawyers should ensure they carefully check all the information on the ET1 prior to issue. It is easy to skim over the more mundane elements of the form, but such errors can be fatal to a claim, and costly to all concerned. The devil is truly in the detail.