On 6 May 2014, the ACAS early conciliation scheme comes into full effect and it’s crucial for both employers and employees that they are aware of and are prepared for this major change to the Employment Tribunal process.
Since 6 April 2014, early conciliation has been voluntary, but from 6 May 2014 it will be compulsory for most Tribunal claims that before filing the claim with the Tribunal the claimant has first obtained an early conciliation certificate from ACAS. To obtain
this certificate, the claimant must contact ACAS (either by phone or by submitting the required form by post or online) and inform ACAS of the name and address of the intended respondent to the claim. ACAS will then contact the claimant and see whether they
wish to engage in conciliation to try to resolve the dispute (participation beyond this point being voluntary) and, if they do, then ACAS will then also contact the proposed respondent to see if they too are willing to engage in conciliation. If either party
at any point says that they are not willing to participate (or continue to participate) in the early conciliation process, then that process comes to an end and an early conciliation certificate is issued to the claimant, who can then proceed with bringing
their claim in the Employment Tribunal. Otherwise, the early conciliation process can continue for one month (with a possible extension of a further two weeks) and if no settlement has been reached by the end of that time period, then again an early conciliation
certificate is issued to the claimant, who can then bring an Employment Tribunal claim. However, if, during the one month (or six week) early conciliation period, the parties do reach a settlement of the dispute, then that settlement will be formalised and
recorded in an ACAS COT3 form and the settlement will be legally binding on both parties.
An important factor in this early conciliation process is the effect which it has on the time period in which a claimant has to bring their Employment Tribunal claim. Most Tribunal claims have to be filed within a period of three months of the event (such as
dismissal) giving rise to the claim, but to enable the parties to have time to engage in early conciliation that time limit is paused while the early conciliation process is underway.
When the claimant contacts ACAS to begin the early conciliation process, this has the effect of pausing the clock on the time limit for bringing a Tribunal claim and that time limit only begins to run again when the early conciliation process has ended. Furthermore,
if a settlement isn’t reached between the parties and early conciliation ends and the time limit clock starts to tick again, then the claimant will have whichever is the longer of one month and whatever was left of their original time limit when the time limit
clock was paused. For example, if a claimant contacts ACAS to initiate early conciliation and does so on the last day of their three month time limit for bringing an unfair dismissal claim and if early conciliation does not then result in settlement and consequently
the claimant now wants to file a claim with the Tribunal, that claim must be filed within one month of the date when the early conciliation process ended (even though when the claimant initiated early conciliation their three month time limit was just about
Kim Freeman-Smith, a solicitor in the Berg employment law team, says that it will be interesting to see what effect early conciliation has on the number of claims which end up being filed with
the Employment Tribunal.
“Certainly the Government’s hope is that it will lead to fewer claims being filed” Kim says. “However, one possibility is that many employers will decide not to engage in early conciliation and instead will wait to see whether the claimant is willing to pay
the required issue fee which usually now needs to be paid when a Tribunal claim is filed. Conciliation through ACAS still can take place once a claim has been filed with the Tribunal and employers may take the view that they will wait to see if the claimant
is willing to part with their issue fee cash and only if they are will the employer then look at a possible settlement of the claim.”
For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Kim Freeman-Smith of the Berg Employment Team on 0161 833 9211 or email her at
Follow us on Twitter: @BergHR.
(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)