Will the Enterprise and Regulatory Reform Bill promote conciliation?

Changes in the Enterprise and Regulatory Reform Bill  are intended to promote conciliation and reduce the number of employment tribunal claims – but how far will they achieve this?

The Bill, which has received its second reading in Parliament recently, contains a number of changes affecting employment law, and the procedure to be adopted by employment tribunals when handling claims. The intention is to increase conciliation, reduce the number of claims in the overstretched and under-resourced employment tribunal system, and expedite the processing of claims. The key proposals are as follows:

Conciliation before institution of proceedings

  • Claimants will not be permitted to present a claim to an employment tribunal until they have entered into a period of conciliation to try and resolve the dispute.

  • Before issuing a claim, they will be required to send prescribed information to ACAS.

  • Upon receipt ACAS will send the information to a conciliation officer, who will endeavour to promote a settlement within a prescribed period of time.

  • If the ACAS officer concludes that no settlement is possible – or the prescribed period expires without a settlement having been reached – they will issue a certificate to that effect.

The Claimant will not be permitted to present their claim to an employment tribunal until the certificate has been issued to them. The strict time limits that currently apply to employment tribunal claims will be extended to enable the conciliation period to take place.

Decision by legal officers

Legal officers will be permitted to determine employment tribunal proceedings if both parties consent in writing. Any such determination shall be treated as if it were made by an employment tribunal. The Bill does not provide clarification as to who will be eligible to hold the position of a legal officer, or what qualifications they will have.

Financial penalties

The Bill contains other proposals relating to levels of compensation, and, controversially, a plan for financial penalties. Where an employment tribunal concludes that an employer has breached any workers’ rights and is of the opinion that the breach has one or more aggravating factors, it may order the employer to pay a penalty of between £100 and £5,000. This penalty may be imposed even though no award has been made to the Claimant. There is no guidance within the Bill as to what would be considered to be an ‘aggravating factor’.

Where an award is made to a Claimant, an employment tribunal may impose a penalty upon the Respondent for a sum of up to 50% of the value of the claim, up to a maximum penalty of £5000.

by Deborah Francis – Head of Employment at Lawspeed

[A longer version of this article was first published by the Association of Recruitment Consultancies]