Don’t conciliate too early

Before starting most kinds of proceedings in the employment tribunal, you have to notify ACAS of your potential claim and go through ‘early conciliation.’ Section 18A(1) of the Employment Tribunals Act 1996 says:

Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.

The information you have to provide to ACAS is minimal: your name and contact details, your employer’s name and contact details, your dates of employment, and the date on which the event you want to complain about took place.

You don’t have to say what kind of claim you are thinking of making to the employment tribunal. That’s deliberate. Previous rules that said you had to raise a grievance before complaining to a tribunal got bogged down in endless arguments about whether the exact claim that the claimant had brought to the ET had been made the subject of a previous grievance. The ‘early conciliation’ regime is supposed to avoid all that, by just making you notify ACAS of a potential claim without identifying it.

But there are still some potential problem areas. One relates to ‘matters’ that only arise after you have sent in an early conciliation form. Suppose you complain about discrimination, and start early conciliation; and then you suffer victimisation because of the complaint. Can you complain to a tribunal about the original discrimination and the later victimisation without notifying ACAS again? Probably not. Until and unless the EAT says it’s not necessary, go through early conciliation again to be on the safe side.

If you’re thinking of complaining of constructive dismissal, bear in mind that there’s no ‘dismissal’ until you’ve resigned. So don’t contact ACAS until after that point. If you’ve given notice, wait until your notice period has run its course and you’ve actually finished work. Otherwise the tribunal may say it doesn’t have jurisdiction to hear your complaint because the ‘matter’ you are complaining about is dismissal, and you can’t have presented information to ACAS about ‘that matter’ as required by section 18A at a time when you hadn’t been dismissed.

If you have a current claim, and you notified ACAS before you resigned, you can do one of two things. You can carry on and hope for the best: the tribunal may accept that the ‘matter’ in question was whatever your employer did that prompted your resignation. Or, if you’re still in time for a fresh claim (in other words, if it’s less than 3 months since your employment ended), you can withdraw your claim, go through early conciliation again; and then present a fresh claim. If you decide to withdraw your claim, it’s important to make sure the tribunal doesn’t issue a judgment dismissing it: if it does, you won’t be able to bring a fresh claim. So your letter telling the tribunal you want to withdraw the claim should explain that you want to commence the same claim again after going through Early Conciliation, and asking the tribunal to exercise its discretion under rule 52 not to dismiss your original claim.

The choice isn’t an entirely easy one. If you decide to carry on and hope for the best, you may lose your claim on a technicality; but if you withdraw and start again, then (unless you’re entitled to remission) you’ll have to pay another issue fee.

If it’s more than 3 months since the end of your employment, but you started early conciliation before you resigned, you’re not in a position to commence a fresh claim. You’ll have to carry on and hope for the best. Don’t despair: this is a problem that might defeat your claim, not one that necessarily will.