The Enterprise and Regulatory Reform Act 2013 introduced the requirement for mandatory Early Conciliation with the Advisory, Conciliation and Arbitration Service (ACAS) and came into force on 06 May 2014. However, this Act applied to Great Britain only and it was not introduced in Northern Ireland.
Similar legislation regarding Early Conciliation was introduced in Northern Ireland via the Employment Act (Northern Ireland) 2016. However, whilst the legislation existed, the legislation applying to Early Conciliation was never ‘commenced’ – i.e. made to happen in reality.
What is Early Conciliation?
Early Conciliation is a process intended to resolve workplace disputes before the case reaches the Employment Tribunal (ET) / Employment Appeals Tribunal (EAT). This may be for many workplace disputes such as unfair dismissal, where one or both parties are keen for the matter to be resolved outside of the judicial process. Regardless of the keenness, there is a statutory obligation to approach ACAS in the first instance. An overriding intention of the process is to keep workplace disputes out of the judicial system when they can often be handled by an independent party (and much quicker too).
If Early Conciliation fails, the dispute can still be taken to the ET. However, they will not consider the application unless it has gone through the ACAS process first.
Neither the ET or EAT apply in Northern Ireland’s judicial system where they are known as the Industrial Tribunal and Fair Employment Tribunal. Similarly, ACAS does not exist in Northern Ireland where the Labour Relations Agency (LRA) performs this role.
27 January 2020
On 27 January 2020, the following employment law legislation from the Department for the Economy (DfE) will come into effect:
- The Employment Act (Northern Ireland) 2016 (Commencement No 3) Order (Northern Ireland 2020;
- The Industrial Tribunals and Fair Employment Tribunal (Early Conciliation: Exemptions and Rules of Procedure) Regulations (Northern Ireland) 2020; and
- The Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020
- The Industrial Tribunals (1996 Order) (Application of Conciliation Provisions) Order (Northern Ireland) 2020
All of this secondary legislation is required to start Early Conciliation which will replace ‘pre-claim conciliation’ on 27 January 2020.
But Northern Ireland Does not have a Government!
Absolutely correct and Northern Ireland has been without a devolved administration for nearly 3 years. So, how is it possible for legislation to be passed?
The simple answer is that the above legislation is secondary to the primary Act that was passed in 2016. It is perfectly possible for this to happen in the absence of a Government / Executive.
What is not possible is for primary legislation to be passed.
Guidance for Employers
There are a number of places to go for guidance on this upcoming employment law change. Mostly, as far as I can see, end with a statement along the lines of ‘for more information, please contact us’. In my experience, this often means that there could be a charge for professional services!
Absolutely, the best place to go for free guidance is the Labour Relations Agency Website. The events page of the Website also contains details of briefings on Early Conciliation in Northern Ireland throughout January 2020. These are being held in Belfast.