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The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004

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CONCILIATION

Documents to be sent to conciliators

21.  In proceedings brought under the provisions of any enactment providing for conciliation, the Secretary shall send copies of all documents, orders, judgments, written reasons and notices to an ACAS conciliation officer except where the Secretary and ACAS have agreed otherwise.

Fixed period for conciliation

22.—(1) This rule and rules 23 and 24 apply to all proceedings before a tribunal which are brought under any enactment which provides for conciliation except national security proceedings and proceedings which include a claim made under one or more of the following enactments —

(a)the Equal Pay Act, section 2(1);

(b)the Sex Discrimination Act, Part II, section 63;

(c)the Race Relations Act, Part II, section 54;

(d)the Disability Discrimination Act, Part II, section 17A or 25(8)(1);

(e)the Employment Equality (Sexual Orientation) Regulations 2003(2);

(f)the Employment Equality (Religion or Belief) Regulations 2003(3); and

(g)Employment Rights Act, sections 47B, 103A and 105(6A)(4).

(2) In all proceedings to which this rule applies there shall be a conciliation period to give a time limited opportunity for the parties to reach an ACAS conciliated settlement (the “conciliation period”). In proceedings in which there is more than one respondent there shall be a conciliation period in relation to each respondent.

(3) In any proceedings to which this rule applies a Hearing shall not take place during a conciliation period and where the time and place of a Hearing has been fixed to take place during a conciliation period, such Hearing shall be postponed until after the end of any conciliation period. The fixing of the time and place for the Hearing may take place during a conciliation period. Pre-hearing reviews and case management discussions may take place during a conciliation period.

(4) In relation to each respondent the conciliation period commences on the date on which the Secretary sends a copy of the claim to that respondent. The duration of the conciliation period shall be determined in accordance with the following paragraphs and rule 23.

(5) In any proceedings which consist of claims under any of the following enactments (but no other enactments) the conciliation period is seven weeks (the “short conciliation period”) —

(a)Employment Tribunals Act, section 3 (breach of contract);

(b)the following provisions of the Employment Rights Act –

(i)sections 13 to 27 (failure to pay wages or an unauthorised deduction of wages);

(ii)section 28 (right to a guarantee payment);

(iii)section 50 (right to time off for public duties);

(iv)section 52 (right to time off to look for work or arrange training);

(v)section 53 (right to remuneration for time off under section 52);

(vi)section 55 (right to time off for ante-natal care);

(vii)section 56 (right to remuneration for time off under section 55);

(viii)section 64 (failure to pay remuneration whilst suspended for medical reasons);

(ix)section 68 (right to remuneration whilst suspended on maternity grounds);

(x)sections 163 or 164 (failure to pay a redundancy payment);

(c)the following provisions of TULR(C)A

(i)section 68 (right not to suffer deduction of unauthorised subscriptions)

(ii)section 168 (time off for carrying out trade union duties);

(iii)section 169 (payment for time off under section 168);

(iv)section 170 (time off for trade union activities);

(v)section 192 (failure to pay remuneration under a protective award);

(d)regulation 11(5) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (failure to pay compensation following failure to inform or consult).

(6) In all other proceedings to which this rule applies the conciliation period is thirteen weeks (the “standard conciliation period”).

(7) In proceedings to which the standard conciliation period applies, that period shall be extended by a period of a further two weeks if ACAS notifies the Secretary in writing that all of the following circumstances apply before the expiry of the standard conciliation period —

(a)all parties to the proceedings agree to the extension of any relevant conciliation period;

(b)a proposal for settling the proceedings has been made by a party and is under consideration by the other parties to the proceedings; and

(c)ACAS considers it probable that the proceedings will be settled during the further extended conciliation period.

(8) A short conciliation period in any proceedings may, if that period has not already ended, be extended into a standard conciliation period if a chairman considers on the basis of the complexity of the proceedings that a standard conciliation period would be more appropriate. Where a chairman makes an order extending the conciliation period in such circumstances, the Secretary shall inform the parties to the proceedings and ACAS in writing as soon as is reasonably practicable.

Early termination of conciliation period

23.—(1) Should one of the following circumstances arise during a conciliation period (be it short or standard) which relates to a particular respondent (referred to in this rule as the relevant respondent), that conciliation period shall terminate early on the relevant date specified (and if more than one circumstance or date listed below is applicable to any conciliation period, that conciliation period shall terminate on the earliest of those dates) —

(a)where a default judgment is issued against the relevant respondent which determines both liability and remedy, the date on which the default judgment is signed;

(b)where a default judgment is issued against the relevant respondent which determines liability only, the date which is 14 days after the date on which the default judgment is signed;

(c)where either the claim or the response entered by the relevant respondent is struck out, the date on which the judgment to strike out is signed;

(d)where the claim is withdrawn, the date of receipt by the Employment Tribunal Office of the notice of withdrawal;

(e)where the claimant or the relevant respondent has informed ACAS in writing that they do not wish to proceed with attempting to conciliate in relation to those proceedings, the date on which ACAS sends notice of such circumstances to the parties and to the Employment Tribunal Office;

(f)where the claimant and the relevant respondent have reached a settlement by way of a compromise agreement (including a compromise agreement to refer proceedings to arbitration), the date on which the Employment Tribunal Office receives notice from both of those parties to that effect;

(g)where the claimant and the relevant respondent have reached a settlement through a conciliation officer (including a settlement to refer the proceedings to arbitration), the date of the settlement;

(h)where no response presented by the relevant respondent has been accepted in the proceedings and no default judgment has been issued against that respondent, the date which is 14 days after the expiry of the time limit for presenting the response to the Secretary.

(2) Where a chairman or tribunal makes an order which re-establishes the relevant respondent’s right to respond to the claim (for example, revoking a default judgment) and when that order is made, the conciliation period in relation to that respondent has terminated early under paragraph (1) or has otherwise expired, the chairman or tribunal may order that a further conciliation period shall apply in relation to that respondent if they consider it appropriate to do so.

(3) When an order is made under paragraph (2), the further conciliation period commences on the date of that order and the duration of that period shall be determined in accordance with paragraphs (5) to (8) of rule 22 and paragraph (1) of this rule as if the earlier conciliation period in relation to that respondent had not taken place.

Effect of staying or sisting proceedings on the conciliation period

24.  Where during a conciliation period an order is made to stay (or in Scotland, sist) the proceedings, that order has the effect of suspending any conciliation period in those proceedings. Any unexpired portion of a conciliation period takes effect from the date on which the stay comes to an end (or in Scotland, the sist is recalled) and continues for the duration of the unexpired portion of that conciliation period or two weeks (whichever is the greater).

(1)

These sections were inserted into the Disability Discrimination Act 1995 (c. 50) by regulations 3(1), 9 and 19 of the Disability Discrimination Act 1995 (Amendment) Regulations 2003 S.I. 2003/1673.

(2)

S.I. 2003/1661.

(3)

S.I. 2003/1660.

(4)

These sections were inserted into the Employment Rights Act respectively by sections 2, 5 and 6 of the Public Interest Disclosure Act 1998 c. 23.

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