2nd April 2014

Don’t Bore Us (Get To The Chorus): ACAS Early Conciliation Factsheet for Employers

There have been plenty of articles written in recent months about the new ACAS early conciliation scheme.  Many of these articles explain in some detail about the exclusions and exemptions from “relevant proceedings” which attract the early conciliation scheme.  Other articles report extensively on the impact of the extended time limits and amended limitation periods.

In my view, a lot of this information is not particularly relevant to employers.  Instead employers should merely ensure that, as a minimum, they are aware of the following facts:

1. Prior to proceeding with an employment tribunal claim, an employee requires to first contact ACAS to assess whether or not a dispute can be resolved through conciliation.  A tribunal will reject a relevant claim which does not contain the unique early conciliation reference number.

2. It is mandatory for those lodging claims on or after 6 May 2014 to have completed this process and to have obtained the early conciliation certificate.

3. During the conciliation period, the ACAS officer will explain the way tribunals operate, discuss the options, help the parties understand how the other side views the case, explore resolution without a hearing (including reinstatement or re-engagement where the claim is for unfair dismissal) and relay any proposals the other side may have.

4. ACAS will not make a judgment on the case or likely outcome of the hearing, advise parties whether to accept any proposals, act as a representative or take sides.

5. There is no duty on either party to engage in these discussions and if it appears to ACAS that there is no reasonable prospect of achieving a settlement, ACAS will issue the early conciliation certificate.

6. The early conciliation period can extend the time limit within which an employee to can lodge a claim by up to one month and two weeks.  There is however a process whereby an employer can pre-empt an early conciliation request from a claimant by contacting ACAS first.  An employer who takes this course of action will prevent the need for the employee to proceed with early conciliation and, more importantly, avoid an extension of the time limits for lodging a claim.

7. The early conciliation scheme does not impact upon ACAS’ existing duty to conciliate in claims that have already entered the tribunal system.

It will be interesting to see whether or not some claimants, deterred from lodging tribunal claims due to high fees, will seek to try and resolve matters through this free early conciliation scheme.  By comparison it will be equally interesting to see whether employers elect not to engage with this process and instead choose to wait and see whether the employee chooses to pay the tribunal fees to pursue the claim.

In either case, there is a clear benefit in taking legal advice at the earliest point so that employers are aware of the strengths and weaknesses of any claim as well as their potential liabilities.

Simon Allison 
Partner – Employment Law

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