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Acas will be launching its new early conciliation regime on 6 April 2014.  This article looks at what the new service will involve and considers the effect it is likely to have on Employment Tribunal claims.

Currently, Acas initiates conciliation between parties once a claimant has submitted a tribunal claim.  However, as a part of the government’s plan to make the tribunal system more efficient, there will now be a new duty on the claimant and Acas to attempt to conciliate before a claim is submitted to the Tribunal.  There will be a new four-step process.

Employment Tribunal time limits

Step 1: Before lodging a claim, a prospective claimant will have to send what is known as an Early Conciliation form (EC form) to Acas, which will include his or her and the respondent’s basic details. There will be no requirement to give any further details relating to the facts or the claims being advanced.  The form can be submitted online, by post or be hand-delivered to the address listed on the EC form. Acas will then send an acknowledgment to the claimant and will record the date that the form has been received.

The submission of the EC form will effectively ‘stop the clock’ in relation to Employment Tribunal time limits until the Early Conciliation certificate (EC certificate) is issued by Acas.  A claimant will not be able to submit a tribunal claim without obtaining an EC certificate.

EC certificate

Step 2: Acas will then make reasonable attempts to contact the prospective claimant and will contact the respondent but only if the claimant consents. If either the claimant or respondent is not contactable, Acas will conclude that settlement is not possible and issue an EC certificate.

Step 3: Where the prospective claimant wishes to conciliate, the file will pass to a conciliator who will then formally contact the prospective claimant or their representative and the respondent, and establish whether conciliation is possible. If either party is unwilling to conciliate, the conciliator will issue an EC certificate.

The conciliator must try to promote a settlement within a “prescribed period”. As it stands, the suggestion is that the prescribed period will be one month. However, the conciliation period may be extended by up to two weeks where the conciliator considers that there is a reasonable prospect of achieving settlement by the end of the extended period and both parties agree to extension.

In the case of a former employee bringing a claim for unfair dismissal, a conciliation officer can promote reinstatement or re-engagement of the employee if the conciliation officer feels it would be equitable.  Settlement through early conciliation also gives the parties the chance of agreeing terms that an Employment Tribunal could not order, for instance, a reference.

Where parties reach agreement a COT3 agreement will usually be drawn up confirming terms of settlement.

Step 4: If a settlement is not reached within the prescribed period, the conciliator must issue an EC certificate to that effect.

ET1 form

If conciliation is not possible, a claimant can then submit an ET1 form to the Tribunal. In terms of Tribunal time limits, the clock will begin to run again from receipt of the EC certificate from Acas. The claimant will be required to input a unique EC reference number on their ET1 form to show that they have satisfied the EC requirements. If a claimant fails to include the EC reference number on their ET1 form, the Tribunal will reject their claim.

As before, Acas can still be involved in conciliation after Tribunal proceedings have been issued.  However, Acas will only get involved if the claimant and respondent both request it or if the conciliation officer considers that there is a reasonable prospect of successfully negotiating a settlement.

What the early conciliation regime means for employers

If, as an employer, you are contacted by Acas regarding early conciliation, it would be prudent to take legal advice on the prospects and cost of defending the potential claim(s) and what a reasonable settlement may be if you do wish to conciliate.  In many circumstances, it will be quicker, cheaper and less stressful to settle potential claims at an early stage than to proceed to a Tribunal hearing.  Early conciliation also gives the parties the chance to resolve their dispute before matters escalate and the employment relationship is damaged beyond repair.

Employers may also wish to begin gathering evidence to defend a potential claim if they are contacted by an Acas early conciliation officer.

If the parties are willing to engage in early conciliation, there is a good chance of fewer Tribunal claims being issued.  It may also be that fewer claimants will issue claims once they have discussed their claims with a conciliator and gained an understanding of the other side’s position.  Time will tell whether the new service has an effect on Tribunal claims.

For more information on the early conciliation regime or to discuss how it may affect your business, contact our Employment Law specialists or call us on 0117 904 6000.