The government recently announced plans to make early conciliation through the Advisory, Conciliation and Arbitration Service (Acas) compulsory in Employment Tribunal claims. But what may not be as widely known is that this service is already available on a voluntary basis. It is hoped that conciliating with Acas can help employees and employers to resolve matters between themselves, either before a claim is issued (pre-claim conciliation) or after a claim has been issued but prior to an Employment Tribunal hearing (conciliation).
If an employment issue arises and is likely to lead to an Employment Tribunal claim, Acas are often able to assist with pre-claim conciliation, which is free and impartial. The Acas conciliator will try to help the employee and employer reach a flexible solution, without resorting to a costly and time-consuming Employment Tribunal hearing.
With pre-claim conciliation, a trained conciliator will discuss the issues and options with you and the other party. Both parties need to be willing to make conciliation work: the conciliator will assist each party to see the other’s views and can suggest options but will remain impartial throughout. If a settlement is agreed, the conciliator will help with drawing up a binding agreement setting out the terms.
According to Acas, 74% of cases that used the pre-claim conciliation service in 2010-11 avoided an Employment Tribunal claim being issued. They also estimate that the service saved employers an average of around £3,700 and employees an average of around £1,300 in each case, compared with an Employment Tribunal claim.
Conciliating with Acas before a claim
Pre-claim conciliation can be particularly useful when an issue arises with a current employee, as resolving the matter quickly and amicably should prevent the employment relationship breaking down.
If conciliation is not successful at the pre-claim stage, an Employment Tribunal claim might be issued but Acas can still assist. Once a claim is issued, a copy will be sent to ACAS and a conciliator will be assigned to the case. The conciliator will contact both sides to see if they are interested in attempting to negotiate settlement. If a claim has been issued against you, seeking formal legal advice is always worthwhile. If you instruct a legal representative, they will liaise with Acas if you want to explore settlement.
Some employers worry that attempting to reach a settlement will harm their position in the eyes of the Employment Tribunal, as it could make it look like their defence is weak. Any discussions that either party has with the Acas conciliator are considered to be ‘without prejudice’: this means that the discussions are confidential and are not passed onto the Employment Tribunal, so the panel hearing the case will not be aware of what, if anything, has been said to Acas prior to the hearing.
Another concern for employers is that they do not want to admit guilt by reaching a settlement. However, most agreements are made ‘without admission of liability’ on the part of the employer so, although the employee may receive a payment (or other non-monetary settlement), the employer is not admitting to having done wrong.
If attempts to agree a settlement are not successful, the Employment Tribunal hearing will then take place and it will be for the Tribunal Panel hearing the case to determine the issues for the parties.
If you have had a claim issued against you or want more information on conciliating with Acas, contact our Employment Law specialists or call us on 0117 904 6000.