With effect from 6 May 2014 Early Conciliation (EC) through ACAS will become mandatory. Under the EC scheme, anyone wanting to bring a claim in the Employment Tribunal (save for a few exceptional types of claim) must first contact ACAS to see whether the dispute can be resolved through early conciliation. Until this is done, a claim cannot be submitted. The onus is principally on the employee to make contact with ACAS to initiate EC (although it is possible for an employer to initiate the process if they want to), but it is nevertheless important for employers to be aware of the EC process and to consider what changes need to be introduced to their policies to deal with it.

Why the change?

The purpose of the new EC process is to try to encourage the early resolution of disputes without the need for lengthy litigation. Clearly in some cases this is going to be no more than a ‘tick box’ exercise. Employees who are determined to litigate are still likely to do so. However, in some cases EC may represent a real opportunity for the parties to try to resolve the dispute before a Claim Form is even presented to the Tribunal. There is no duty on the parties to engage in EC, so employers will not be forced to conciliate if they don’t want to.

What is the process?

An EC Certificate will be needed before a claim can be issued in the Tribunal. Broadly speaking an EC Certificate will be issued by ACAS once the claimant, employer or ACAS itself decides that they don’t think that the dispute can be settled through conciliation, or once the statutory conciliation period expires. Where the parties agree to conciliate, ACAS has one month from the date the EC form was received by ACAS to facilitate a settlement. That period can be extended by up to 2 weeks where there is a reasonable prospect of achieving a settlement.

In particular, employers should be aware of the following points:

Who is going to speak to ACAS?

When an employee makes the initial contact with ACAS they need to provide a phone number for the employer. An employer will be contacted using that phone number once an employee has confirmed that they are happy to enter into the EC process. Employees won’t always provide direct dials for the relevant contact at the employer, and may even just provide a switchboard number. Employers should therefore consider who should be the contact point for any calls received from ACAS (usually this will be the HR department, but it may vary from one case to the next), and ensure that switchboard/reception staff are trained to know who to put the call through to. The duty on ACAS is to make “reasonable attempts” to contact the employer. Having a clear policy on who calls should be directed to will help employers to ensure that calls from ACAS are not missed. If the employer cannot be contacted, the EC certificate will be issued and the employee can proceed with their claim.

Should employers agree to Early Conciliation?

It is unlikely that employers will have a blanket policy on whether or not to agree to EC since it is likely to be very case specific. In some cases it might be helpful to agree to use ACAS at an early stage to see whether a dispute can be resolved. In other situations employers are likely to wait to see whether the employee will actually take things as far as issuing a claim (particularly since the new Tribunal fees may act as a disincentive). However, in a situation where the employer is aware that there is a dispute which is likely to litigate, it would be sensible to agree what stance it wants to take in relation to ACAS’s involvement. Ideally this decision should be taken before the initial contact from ACAS. Are you prepared to make an offer to get rid of the potential claim?

Be aware of the change to time limits

It used to be the case that employers could be reasonably certain that if a claim was not brought by an employee within 3 months, the employee had decided not to litigate. However, the EC process will extend the time limits for bringing claims. Effectively the EC process will ‘stop the clock’ on the applicable time limit, giving the employee additional time in which to bring a claim. In some circumstances this could extend a time limit by up to one calendar month. Employers should watch out for claimants who are tactically using the EC process to give them longer to bring a claim, without any intention of settling the dispute. It may not be appropriate to agree to EC in that situation.

Consider initiating early conciliation

There is a mechanism which enables employers to initiate EC if they want to. This will not ‘stop the clock’ on any applicable time limits, but it will mean than an EC Certificate will be issued if the early conciliation is unsuccessful. Employers should be cautious about initiating EC though. Most of the time it will be better to wait to see what the employee does, rather than initiating a process which may just make it easier for a claimant to bring a claim. For example, a claimant may be unaware of the requirement to contact ACAS and could therefore have their claim rejected. If the employer initiates the EC process, this could actually help the claimant to bring their claim.

Resolving disputes

As mentioned above, the EC process is likely to be a useful tool in some cases, particularly where there is a low value straightforward claim. Consider agreeing to participate in EC in those types of cases, to see whether it is possible to get rid of claims at an early stage without the need for the management time and legal fees involved in defending a Tribunal claim.

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