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New employment tribunal laws come into force

Mandatory Pre Claim Conciliation
From 6 May 2014 Claimants must begin pre claim conciliation (PCC) through ACAS before they can submit a claim. The Claimant must submit a form by a particular date, at which point the clock stops on the limitation period of their claim and conciliation for a "prescribed period" begins. If the parties can't reach agreement or the "prescribed period" expires, ACAS will issue a certificate to that effect and the Claimant will have a further month to bring a claim.
 
Whilst voluntary PCC has been successful to some degree, its value has noticeably diminished with the introduction of Tribunal fees - many employers will wait to see if claimant's will put their money where their mouth is before taking settlement negotiations seriously. Mandatory PCC arguably improves this position. However, it will certainly bring with it the problem of satellite litigation regarding limitation periods and lengthy periods of uncertainty for employers where Claimants submit their PCC form at the last minute, string out negotiations and then submit a claim on the last possible date.
 
Penalties for Employers
Where an employer fails to defend a claim submitted on or after 6 April 2014, the Employment Tribunal will have the power to issue a financial penalty. The minimum penalty will be £100, the maximum £5,000 and employers will get a 50% discount if they pay within 21 days.Such penalties will be issued where an employer's breach has "one or more aggravating features".
 
Since there is no solid guidance on the meaning of "aggravating features", it remains to be seen how Tribunals will exercise their power. There may be some comfort to employers by the suggestion that a penalty would not be issued where there has been a genuine mistake but, at this point, employers facing a claim would be wise to factor in at least an additional £2,500 to their expected costs of dealing with the claim and be prepared to deal with this extra leverage for claimants in settlement negotiations.
 
Discrimination Questionnaires
Discrimination questionnaires have often been viewed by employers as enabling disgruntled employees' fishing trips which they can't afford to ignore due to the adverse inference a tribunal could draw from such a response, so they will be pleased to hear that from 6 April 2014, discrimination questionnaires will be a thing of the past.
 
However, new ACAS guidance on how an employee should go about obtaining information seems to undermine the attempt to remove burden from the employer. To a great extent the guidance mirrors the old questionnaires but removes the requirement to use a particular form, which could potentially lead to employers failing to realise the nature and importance of a list of questions emailed to them. As a result of EU case law it is possible that tribunals will still take into account a failure to deal with a request for information of this type.

Further information on early conciliation can be found here http://www.acas.org.uk/media/pdf/h/o/Early-Conciliation-explained.pdf