Canada: Changes To The Acas Early Conciliation Procedure

The Rules of Procedure for Acas Early Conciliation are changing on 1 December 2020.

Here our employment law experts consider the impact of this change and other changes under The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (SI 2020/1003) (the "Amendment Regulations").

The Amendment Regulations make changes to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (SI 2014/254) (the "EC Regulations") which come into force on 1 December 2020. The key change is that the current one-month period (which can be extended by a further 14 days with agreement) is changing to a new six-week period with no opportunity to extend.

As well as changes to the EC Regulations, the Amendment Regulations also provide that, from 8 October 2020, non-employment judges may sit as Employment Judges, subject to certain criteria. In addition, some functions currently carried out by Employment Judges may be delegated to Legal Officers. The Amendment Regulations also make various changes to the Employment Tribunal Rules, which include making it easier for Tribunals and parties to conduct remote hearings, giving the Tribunals greater powers to accept claims, which contain administrative errors, and giving parties wider scope to deal with multiple claims or responses in one form.

Early Conciliation

Acas early conciliation ("EC") has been available since 6 April 2014 and became mandatory for claims presented on or after 6 May 2014. The EC procedure requires a prospective claimant to notify Acas, using an EC form or by telephone, before submitting relevant proceedings to the Employment Tribunal.

Current position until 1 December 2020

Following the claimant's notification, Acas will make contact with both them and, assuming the claimant agrees, with the prospective respondent to determine whether they wish to conciliate. If they do, the EC period will last one calendar month, but this can be extended once by up to 14 days if the parties and the Acas conciliation officer agree. The limitation period for claims in relevant proceedings to which the EC requirement applies is extended to take account of the EC period. If conciliation fails, Acas will issue an EC certificate containing a reference number. A claim form will be rejected by the Employment Tribunal if it contains no EC reference number. If the names or addresses of the parties on the claim form are different to those on the EC certificate, the claim form will be rejected unless the Tribunal believes there has been a "minor error" in relation to the names and addresses and it would not be in the interests of justice to reject the claim.

Position as of 1 December 2020

The Amendment Regulations provide for a six-week conciliation period in all claims instead of the one-month period, which currently applies, and the parties together with the Acas conciliation officer will no longer be able to agree to extend the conciliation period by 14 days. It will also be possible for Acas conciliators to correct errors in the early conciliation form at any time during the early conciliation period.

What does this mean?

In reality, this does not fundamentally change the legal or practical position of most claims. Employers must be alive to the new default period of six weeks and that it is now easier for parties to correct errors on the EC form.

As the 14-day extension of the default one-month period was always potentially available to the parties under the old rules, the new six-week period reflects the reality of the time limit of an EC period in a typical case that is capable of settlement during the EC period. We wait to see if a standard six-week EC period will result in a greater number of cases achieving a pre-claim resolution, as is the hope behind this change.

These amendments will also make any application for a claim to be struck out on the basis of errors in the EC form much harder to achieve.

Is there any impact on limitation periods?

The limitation period for claims in relevant proceedings to which the EC requirement applies are extended to take account of the EC period. No changes have been made to the provisions of the Employment Rights Act 1996, which give effect to the extension of limitation periods for claims in relevant proceedings (the so-called "stop the clock" mechanism), so these will continue to operate as they do currently. Day A (the day on which the prospective claimant contacts Acas by telephone, or the day on which Acas receives their EC form) and Day B (the day on which the prospective claimant receives the EC certificate) will operate in the same way, though we expect to see more claims with a six week period between Day A and Day B.

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