Failure to undertake ACAS Early Conciliation: Sympathy Irrelevant

Tags: Harassment, Employment Tribunal, Employment, Time Limit

Since the introduction of the ACAS Early Conciliation (‘AEC’) scheme in May 2014, it has been mandatory for any individual seeking to make a claim to the Employment Tribunal (‘ET’) to first attempt to conciliate with the party with whom they are aggrieved via ACAS.

The logic behind this is simple; if the parties are required as a matter of course to discuss the claim before it is lodged, there is a greater chance that ACAS can assist them in settling their differences amicably before litigation is commenced, litigation which would put the taxpayer to expense.

Though the legislation is still relatively new, the question as to whether the tribunal can hear a claim absent the AEC requirements having been met was always going to arise and did so recently in the Employment Appeals Tribunal (‘EAT’) case of Cranwell v Cullen.

Miss Cranwell had put her claim into the tribunal without conciliating via ACAS. The reason for her not doing this was she was labouring under the apprehension that in order to conciliate she would have to have direct contact with her former employment Mr Cullen. Her allegations were most serious if correct and included sexual harassment of her by Mr Cullen; Miss Cranwell additionally already had a live injunction against him.

Those that have some knowledge of the AEC process will be aware that such direct contact would not have been required, indeed the process puts an ACAS Conciliator as a bridge between the parties in part to provide a safe forum for communications to take place.

The Employment Judge at the ET of first instance was ultimately faced with no choice other than to strike out Miss Cranwell’s claim on the basis that she had not complied with the AEC requirement per s.18A of the Employment Tribunals Act 1996.

On appealing the decision to the EAT, despite a compelling argument that the legislation provided for the tribunal to have discretion in certain cases, the EAT found no such discretion was present in the Employment Tribunal Rules of Procedure; the requirement to undertake the AEC process was strict and absolute.

The President of the EAT, Mr Justice Langstaff, in hearing the appeal noted his great sympathy with Miss Cranwell’s situation and considered it was all the more regrettable that had she undertaken AEC, the allocated conciliator would have seen that this was clearly a case where conciliation would have been fruitless and the requisite certificate would have been issued without delay.

Conclusion

The facts of this matter do impart how absolute the requirement to undertake AEC is. Plainly claimants that skip this process can expect perhaps sympathy from the tribunal, though such sympathy will not come with an order allowing their case to proceed, regardless of how unfortunate the facts might be.

From an employer’s perspective the core lesson is that it is important to have competent advisers on board that can immediately spot such procedural failings and so deflect quickly and cost effectively any claims brought that have failed to comply with the requirements to undertake AEC.

NB: For those that feel the decision in Miss Cranwell’s case was overly harsh and rigid, she will be able to re-submit the claim for harassment. While this will be technically out of time now, on balance (and providing this time she goes through the AEC process, a tribunal may be likely to grant her an extension of time on the basis that it would be just and equitable to do so; a hint heavily dropped by Mr Justice Langstaff in his Judgment on appeal. This would not be likely to happen if the claim was for unfair dismissal, where the requirements to extend time are much more strict.

As always if I can provide you with any further assistance on queries relating to ACAS Early Conciliation, please do not hesitate to contact me for a free consultation on 0113 350 4030 or samira.cakali@scesolicitors.co.uk.

Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

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