Regardless of the absence of the local Assembly, mandatory early conciliation, a service already offered in England, Scotland and Wales, is likely to hit Northern Ireland shores in January 2020.
The objective of early conciliation is to settle employment related disputes, without the requirement of instigating Industrial Tribunal proceedings. Given the likely commencement date, employers should prepare and familiarise themselves with the process; the best way being to consider the operation of the process in practice in England, Scotland and Wales.
Since May 2014, the Advisory, Conciliation and Arbitration Service (ACAS – which is the equivalent of the Labour Relations Agency (LRA) in this jurisdiction) has been obligated by statute to offer early conciliation for an initial period of a calendar month. Thereafter, the conciliation officer has discretion to extend this period for a further two weeks, should both parties’ consent.
Whilst conciliation is not new, the early conciliation process has a major, key distinction; being the effect on time limits for the instigation of an Industrial Tribunal claim.
Bar a small number of exceptions, most Industrial Tribunal claims must be lodged within 3 months. However, early conciliation will ‘pause’ this time limit, if the potential claim was notified to ACAS within said time limit. Currently, if ACAS are contacted following expiry of the statutory time limit to claim, no retrospective adjustment to the time limit can be made.
Currently, in NI, whilst the LRA offer pre-claim conciliation and are statutory bound to promote the settlement of Tribunal claims once lodged, partaking in the existing process is not obligatory. This will change with the introduction of the early conciliation scheme. Details of a claim must be notified to the LRA prior to instigation of the legal proceedings but both parties must consent to the continuance of the process thereafter.
Early conciliation could potentially be a double-edged sword for employers. On the one hand, employees may be granted longer (albeit insignificant) periods of time to submit Tribunal claims. Conversely, it may present an employer with an opportunity to resolve workplace disputes prior to and without the need for litigation, which has the potential to be time consuming and costly.
Based on statistics released by ACAS, for the period April to September 2018, of the significant number of conciliation notifications submitted to ACAS, 12% resolved by way of settlement and 23% proceeded to Tribunal claim stage. Ultimately, time will tell of the success of the process in NI; but employers should be aware of its introduction and seek legal advice should the LRA contact them regarding any submission made by a disgruntled employee.
Toni Fitzgerald Gunn is a Solicitor in Worthingtons Solicitors, Belfast, where she specialises in Employment Law and can be contacted on 028 9043 4015 or firstname.lastname@example.org.
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