Commentary on Sections Section 8: Conciliation before bringing of proceedings
36.Section 8  amends Article 20 of the Industrial Tribunals Order. Article 20 specifies the circumstances in which the Labour Relations Agency (LRA) is obliged, or has the power, to offer conciliation.
37.Article 20(3) of the Industrial Tribunals Order applies to conciliation in situations where a person could bring tribunal proceedings, but has not yet done so. It provides that where conciliation is requested, the LRA conciliation officer has a duty to attempt to facilitate the parties in reaching a conciliated settlement to the dispute (where both parties have made the request), or (if only one party has made the request) to do so where there is a reasonable prospect of success.
38.Paragraph (2) of the section amends Article 20(3) of the Industrial Tribunals Order to replace this obligation with a discretionary power to conciliate in a pre-tribunal dispute without requiring the LRA officer to justify the reasons for his or her decision as to whether or not to offer conciliation. The intention of the amendment is to afford the Agency complete discretion as to how it will operate its pre-claim conciliation services.
39.Article 20(5) of the Industrial Tribunals Order provides that, where a person claims that an unfair dismissal complaint under Article 145 of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order) could be, but has not yet been, made, the LRA officer must act as if that claim had been made and, as provided for in Article 20(4) of the Industrial Tribunals Order, as part of the conciliation exercise, attempt to secure reinstatement or reengagement (or additional compensation in lieu of such) for the dismissed employee. Paragraph (3) of section 8 repeals that duty and substitutes a discretionary power to seek such reinstatement or reengagement in pre-tribunal disputes.