Contents 

• Background and enacting legislation
• LRA Guidance
• Making an Early Conciliation Application
• Making an application to the Industrial/Fair Employment Tribunal
• FAQ's

Background and Enacting Legislation

Protracted employment disputes can be stressful, damaging and costly for all involved.  In light of this a public consultation was launched in July 2010 by the then Department for Employment and Learning which sought stakeholder views on a fundamental review of employment law under three key themes:

• early resolution of workplace disputes; – the routing of all potential tribunal claims to the Labour Relations Agency (LRA) in the first instance, with the objective of encouraging potential claimants to consider the merits of resolving their disputes without the need to go through a formal legal process;
• efficient and effective employment tribunals; and
• better regulation measures.

The proposed system of Early Conciliation was well received by stakeholders and the outcome of the consultation was that the Department would take appropriate primary legislative powers to enable Early Conciliation to be established.  This came in the form of the Employment Act (Northern Ireland) 2016 in which Articles 1-10 provided a framework for Early Conciliation (EC). 

The breakdown of the Stormont Executive meant that the process for EC was not implemented until the 27th January 2020.  EC has been in place in the rest of the UK for claims presented on or after the 6th May 2014 and is facilitated by Acas.  

In preparation for the introduction, five pieces of Early Conciliation-related pieces of legislation were published online:

SR 2020/1 - The Employment Act (Northern Ireland) 2016 (Commencement No. 3) Order (Northern Ireland) 2020

This Order brings into operation certain provisions of the Employment Act (Northern Ireland) 2016 on 27th January 2020.
http://www.legislation.gov.uk/nisr/2020/1/note/made

SR 2020/2 - The Industrial Tribunals and Fair Employment Tribunal (Early Conciliation: Exemptions and Rules of Procedure) Regulations (Northern Ireland) 2020

The Employment Act (Northern Ireland) 2016 amended the Industrial Tribunals (Northern Ireland) Order 1996 and the Fair Employment and Treatment (Northern Ireland) Order 1998 to introduce a requirement for prospective claimants to contact the Labour Relations Agency before they are able to present a claim to an industrial tribunal or the Fair Employment Tribunal. This requirement applies to claims which are relevant proceedings under Article 20(1) of the Industrial Tribunals Order or Article 38 of the Fair Employment and Treatment Order.
http://www.legislation.gov.uk/nisr/2020/2/note/made

SR 2020/3 - The Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020

These Regulations and Rules of Procedure establish requirements in relation to proceedings before industrial tribunals (ITs) and the Fair Employment Tribunal (FET). They revoke and replace earlier regulations and rules which separately dealt with these tribunals.
http://www.legislation.gov.uk/nisr/2020/3/contents/made

SR 2020/4 - The Industrial Tribunals (1996 Order) (Application of Conciliation Provisions) Order (Northern Ireland) 2020

This Order amends Article 20(1) of the Industrial Tribunals (Northern Ireland) Order 1996 (“the 1996 Order”). Article 20(1) lists the proceedings which are relevant proceedings for the purposes of early conciliation and other conciliation services provided by the Labour Relations Agency. The amendments made by this Order update the list of jurisdictions in Article 20(1).
http://www.legislation.gov.uk/nisr/2020/4/contents/made

SR 2020/15 - The Transfer of Undertakings and Service Provision Change (Protection of Employment) (Amendment) Regulations (Northern Ireland) 2020

These Regulations amend the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“the TUPE Regulations”), insofar as those United Kingdom wide Regulations apply to Northern Ireland. They also make related amendments to the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (“the SPC Regulations”). The SPC Regulations apply only to Northern Ireland.  The effect of the amendments to the TUPE Regulations and the SPC Regulations is to provide for the extension of the limitation periods which apply for bringing a case to an industrial tribunal under the jurisdictions appearing in those Regulations. The amendments to those limitation periods are needed as a result of the introduction of Early Conciliation. The Regulations also make consequential amendments to cross-references to new conciliation provisions set out in Articles 20A to 20C of the Industrial Tribunals (Northern Ireland) Order 1996.
http://www.legislation.gov.uk/nisr/2020/15/pdfs/nisrem_20200015_en.pdf

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LRA Guidance

The Labour Relations Agency has produced an informative guide which provides a step by step guide in using the EC process.  This guide is available here.  It emphasises that EC is a free service and “provides a safe space where you can explore a possible agreement both parties can accept, rather than a ‘win or lose’ decision being given in a public hearing. It is private and less stressful than going to a Tribunal hearing.”

Conciliation is a tried and tested effective method of resolving workplace disputes at an earlier stage avoiding the need for costly and stressful litigation. 

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Making an Application for Early Conciliation

The first step in the process is completing a short Early Conciliation notification form.  The easiest way to make a notification is using the LRA’s online portal. You will need to register to use the online portal (see screen shot below) by providing an email address and password.  The system will then send a code via email which is then redeemed on the portal to allow you to proceed with the notification.  The portal provides for Employee-led EC and Employer-led EC (traditionally known as a NONET1 application) and for representatives to check on the status of notifications.  There is also an option for multiple notifications to be made – what is often referred to as a ‘bulk case’. 

Where an applicant does not have access to a computer, they can contact the LRA by telephone (033 00 55 22 24) and their details will be taken over the phone. 

Once the notification is received the EC process will be engaged, and a Conciliation Officer will make contact with the prospective claimant to get their consent to EC and will then make contact with the other party to explore resolution of the matter.  Details of time limits and what will happen during the EC process are available in the LRA Guide to EC. 

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Making a Tribunal Application

If the parties do not reach agreement through EC or they do not wish to engage in EC the LRA will issue an Early Conciliation Certificate.  Claimants will be unable to have their application to the Industrial and/or Fair Employment Tribunal registered unless they have provided the Certificate number.  There are exemptions set out in the LRA guide which detail the circumstances where a Claimant will not have to engage in EC/provide an EC Certificate number to have their tribunal application registered.  They will need to specify on the ET1 form what those exemptions are. An updated ET1 form has been produced which can be accessed here.
https://www.employmenttribunalsni.co.uk/sites/itfet/files/media-files/ET1-Claim-Form-Jan-2020.pdf

Claimants will need to enter the EC Certificate number for each respondent or, if they do not have a certificate number, they must tick whichever exemption category applies.  This includes:

• Another person I am making the claim with has an LRA Early Conciliation Number
• LRA does not have the power to conciliate some or all of my claim
• My employer has already been in contact with LRA
• My claim is for unfair dismissal which contains an application for interim relief
• My claim starts proceedings against the Security Service, the Secret Intelligence Service or the Government Communications Headquarters

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Frequently Asked Questions

1. NONET1 form – will the NONET1 form remain as is following the introduction of EC? In other words will employers still be able to facilitate NONET1 settlements with employees which settle all potential claims arising out of employment or termination thereof.

Yes. We will continue to facilitate NON ET agreements as we do at present. We can settle individual claims or ‘all claims’ if this is what the parties agree.

2. If a party refuses to engage in Early Conciliation – will any negative inference be drawn from this by the Tribunal?

No. The Tribunal will not be aware of the parties’ involvement, if any in the Early Conciliation process.

3. Employers may be concerned that any information discussed during the EC process will be used by the Claimant in their claim form – assuming EC doesn’t result in a settlement. Are discussions under EC confidential and will this be emphasised to the parties?

Yes. As was previously the case, conciliation discussions are confidential and can’t be used as evidence at an Industrial or Fair Employment tribunal. This will be explained to prospective claimants and prospective respondents at the outset of the conciliation process.

4. What if any documents or information will employers/potential respondents get from the LRA during the EC process?

Prospective claimants will receive confirmation that the EC notification has been received. We are hoping that most applications will come through the online portal so this will be automatically generated via e mail. They will also receive some details around the conciliation process. The employer should also receive information on the conciliation process following contact from a conciliation officer. The process of conciliation will be exactly the same as previously offered. There will be no paperwork shared in relation to the details of the case – most of the discussions between the parties, through the conciliation officer, will be by phone.

5. If there is more than one respondent – which is often the case with a public sector employer – who will the LRA contact for EC purposes? I understand that a separate EC form needs to be completed per respondent – so what happens if the Employee only completes one EC form but should also have named other respondents – are they prevented from taking a claim against the other respondents if they did not name them at the EC stage?

As you have said, a separate claim form must be submitted for each prospective respondent. Where the respondent is a named person, the conciliation officer will contact that individual person. Where a business name is given but no contact provided, the conciliation officer will make contact with the business and will make attempts to contact an appropriate person with whom to discuss the case. This will be done with consideration to the sensitive nature of the issue. We will be compiling a list of contacts within organisations who will be appropriate contacts for the purposes of Early Conciliation. If any organisations wish to share this information with us, please forward this to the LRA.

If a prospective claimant only submits one EC notification, and they subsequently wish to include other respondents on their ET1, they have 2 options:

• They can submit another EC notification/s (there may be time limit issues); or
• When they submit a Tribunal claim, they can request that the respondent is added to the proceedings. It will be for the judge to decide on this matter.

6. During the Tribunal process additional respondents are often added to the proceedings. If they are not mentioned during the EC process will this prevent them being added as a party once the claim goes to the Tribunal (assuming it did not settle through EC)?

See above answer.

7. Can you clarify what is meant by the clock being stopped for a month – does the clock start to run the day following the issue of the EC certificate or the day that it is issued? I am thinking of situations where the EC application is made the day before or on the day that a 3-month deadline is up for lodging a claim. Is the clock stopped on the day the EC application is made? If it starts again on the day following the date the EC certificate is issued – will the claim to Tribunal need to be lodged on the same day it is issued to avoid being out of time?

The short answer to the last question is no- it won’t be out of time. The Prospective claimant must contact the LRA before the ordinary limitation period expires, which is usually 3 months for most claims. Therefore if an EC notification is received by the LRA on the last day of the 3 month time limit, the notification has been made within the time limit.

On receipt of the EC notification, the clock will stop for the duration of the conciliation period. If conciliation is rejected or unsuccessful, a certificate will be issued on or before the one month period allowed for Early Conciliation to be explored. The prospective claimant will then have at least a month following receipt of the certificate to make a claim to the Tribunal

You should also be aware that we will also conciliate on EC notifications which are made to the LRA, outside the 3 month limitation period. These will not benefit from the stop the clock provisions. If they are late when they notify the LRA, they will still be late if they subsequently submit a claim to tribunal so stop the clock is of no benefit to them. They can however make arguments at tribunal around ‘just and equitable’ and ‘reasonably practicable’ and it will be for the judge to determine if the case can be heard. Where the individual makes a late notification to the LRA, the conciliation officer will offer conciliation but will also highlight to the employee that they may add to the ‘late period’ by engaging in conciliation. If they choose to have the certificate issued immediately, we will do this.

8. Can you clarify what is meant by ‘reasonable attempts’ to contact the parties? What happens when an organisation is closed for example during holiday close downs or school holidays in the case of a school? Will the LRA continue to contact or give up – can the time for conciliation be extended in those circumstances?

We will set internal guidelines on what we deem to be ‘reasonable attempts’. This is likely to be around 3 attempts to contact by phone, followed by email/letter if this is not successful, over a period of about 2 weeks. If we are unable to make contact with the parties within this time frame, an EC certificate will be issued.

9. Will EC be carried out on a face to face basis or just on the telephone and what about NONET1s – which usually involve a meeting – will that still occur?

EC contact will primarily be by phone. Non ETs will continue to be facilitated by face to face meetings, resources permitting.

10. If an employee makes an EC application rather than following internal procedures will this have a negative inference on their claim if the matter does not settle during EC? Alternatively, an Employee may lodge an EC application while internal procedures are still ongoing – will EC be able to continue in these circumstances?

The LRA Discipline and Grievance Code of Practice guidance remains, so the Tribunal may still take into account failure to follow the grievance procedure in any award they make.

To the second part of the question – EC will continue regardless of internal procedures ongoing, provided the parties both agree to engage in conciliation.

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