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Posted in:HR and Employment|February 8, 2013 | Join the mailing list

The Government is pressing ahead with its schedule of changes to employment law and has now begun consultation on proposals for early ACAS conciliation with regard to employment tribunal claims. Also, the Children and Families Bill has now
been published, dealing with shared parental leave and an extension to the right to request flexible working.

Early Conciliation

Early Conciliation will require most potential tribunal claims to be referred to ACAS for possible conciliation before the claim can go ahead in the employment tribunal. The current Government consultation, which is seeking views on the proposed
Early Conciliation (EC) scheme, closes on 15 February 2013.

Under the proposed EC scheme, a prospective tribunal claimant will be required to contact ACAS on an EC form providing basic information such as their name, address and contact details and those of their employer or former employer. Once
ACAS receive the completed EC form, this will temporarily "stop the clock" on the statutory time limits for bringing the relevant claim in the employment tribunal, so that conciliation can then be allowed to take place.

If, once ACAS has received the EC form and then made initial contact with the parties, both parties then agree to participate in EC, ACAS will have up to one calendar month from receipt of the EC form in which to facilitate a settlement between
the parties. If the settlement discussions fail to achieve a settlement agreement by the end of that month or one party withdraws from the conciliation process at some point during the month, then EC will be deemed to be concluded and a certificate will then
be issued allowing the employment tribunal claim to go ahead. However if, on the other hand, EC is successful, then both parties would sign a binding settlement agreement and no tribunal claim would then be brought.

Claire Haworth, Employment Solicitor at Berg, comments: "The new laws dealing with Early Conciliation are expected to come into force in summer this year. Encouraging both parties at least to consider conciliation at an early stage has to
be beneficial, not least since a significant amount of management time and costs are spent dealing with tribunal claims every year. However, with the introduction of employment tribunal fees also scheduled for summer 2013, it remains to be seen whether businesses
will truly be interested in Early Conciliation. They may well decide that rather than engage in the Early Conciliation process, they would rather wait to see whether the employee is willing to pay out the necessary fee to commence an employment tribunal claim."

Children and Families Bill

At the end of last year, the Berg employment team published an article rounding up the key employment changes made in 2012 and looking ahead to 2013. In that summary, we mentioned the Government’s proposals for a new system of shared parental
leave and extended flexible working.

Since then, the Government has published the Children and Families Bill, which includes proposals on shared parental leave and extending the right to request flexible working to all employees.

If it becomes law, the Bill will create new rights for shared parental leave and statutory shared parental pay, although the precise detail of how the scheme will work and the eligibility criteria are yet to be revealed. However, it is clear
that the new system will mean that women will continue to be eligible for maternity leave and pay, but will be able to choose to end their maternity leave early and share the remaining balance of their leave with their partner. Similar rights will also be
created for adopters.

The new system for dealing with shared parental leave will mean that the existing provisions dealing with additional paternity leave will be repealed.

The Bill also creates a new right to take unpaid time off work to attend up to two ante-natal appointments with a pregnant woman (for a maximum period of 6½ hours for each appointment) for anyone who is in a qualifying relationship with that
woman (e.g. husband, partner etc).

Finally, the Bill also extends the right to request flexible working, so that it will apply to all employees rather than being limited to parents and carers. The existing statutory procedure for considering flexible working requests will
also be removed, so that employers will be allowed to consider requests using their own existing HR processes.

Claire Haworth added, "There is some concern that extending the right to request flexible working will place an additional burden on businesses, while others believe that the changes will make life easier for millions of employees. One view
is that if these changes enable employees to strike a better work life balance while allowing businesses to retain valuable members of staff, then that has to be a good thing. However, we will have to wait to see just how workable the changes are in practice
before we are really in a position to assess their impact on businesses and their staff."

For more information about any of the above or for practical advice on this or any other aspect of employment law, please contact Nigel Crebbin or Claire Haworth of the Berg Employment Team on 0161 833 9211 or email us at or
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.


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