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Currently ACAS has the power to help parties conciliate certain employment claims, before or after they have been brought in the tribunal. The conciliation officer acts as an impartial go-between, who reports offers and counter-offers to settle proceedings between parties.
What is changing?
On 6 April 2014, pre-claim ACAS conciliation will be introduced. The process will be mandatory for claims submitted on or after 6 May 2014. Claimants will have to submit details of their dispute to ACAS before bringing a claim, at which point they will be offered pre-claim early conciliation (EC) for a period of one month.
If it is refused by either party, or is unsuccessful, the employee will be able to go ahead and present their claim to the Tribunal. If the parties enter into EC this will "stop the clock" on the limitation period to present the claim to the Tribunal.
The vast majority of employment tribunal claims will be covered by EC save for some very limited exceptions, such as group actions and claims involving interim relief.
The four steps
Step 1: Employee sends completed EC form to ACAS
The employee has to provide their and their employer’s name and address to ACAS either by phone or on the EC form (which can be completed on line or sent in the post). If the employee is claiming against more than one party (eg a harassment claim could be brought against the employer and the alleged harasser personally), the employee will have to give details of all the parties. Significantly, the employee does not have to provide any information about the nature of their claim(s).
If the submitted form does not contain the basic information required, ACAS may reject the form and return it to the employee or contact them to obtain any missing information.
Step 2: Early Conciliation Support Officer (ECSO) contacts the employee
An ECSO will make “reasonable attempts” to contact the employee. The purpose of that call is to obtain basic information (such as length of employment and details of the claim) and discuss any misunderstandings which the employee may have (such as thinking they can bring an ordinary unfair dismissal with less than 2 years’ service).
Where the ECSO is unable to contact the employee, or the employee indicates that s/he does not wish to proceed with conciliation, the case will be closed and a certificate confirming that the employee has complied with his/her obligation to contact ACAS will be issued. The employee will then be able to present a claim to the tribunal.
If the employee wishes to proceed, the ECSO will pass the case to the conciliator (see Step 3 below).
Step 3: The conciliation officer attempts to promote settlement
If the employee wishes to conciliate, a conciliator will have to contact the employee, whether or not there is a claim which a tribunal can in fact hear as decisions on jurisdiction have to be taken by the Tribunal not ACAS.
Where the employee has a legal representative, the conciliator will liaise with them rather than directly with the employee.
With the employee’s consent, the conciliator will make reasonable attempts to contact the employer to see if they are willing to participate in conciliation. If the conciliator is unable to make contact or the employer declines EC then an EC certificate will be issued and as above the claim can be submitted to the Tribunal.
Where both parties wish to conciliate: conciliation period
Where both parties have agreed to participate in the conciliation process, the conciliator will have one month from the date of receipt by ACAS of the employee’s completed EC form/phone call to promote a settlement between them.
The conciliation period may be extended by ACAS for up to two weeks where both parties agree and the conciliator considers that there is a reasonable prospect of achieving a settlement by the end of the extended period.
If the case concerns unfair dismissal the conciliator is under an obligation to promote reinstatement or re-engagement of the employee "on terms appearing to the conciliation officer to be equitable". The conciliation officer can only promote settlement by way of compensation where either the former employee does not wish to be reinstated or re-engaged or it is not practicable.
Step 4: Dealing with the outcome of conciliation
If at any point during the EC period, or during any extension of that period, the conciliation officer concludes that settlement is not possible, ACAS will issue an EC certificate.
If the EC period, including any extension of that period, expires without settlement having been reached, ACAS will issue an EC certificate.
Where the parties agree to settle, ACAS will draw up an agreement recording the settlement and will issue an EC certificate. This may be recorded in a COT3 or in a private settlement agreement.
Bringing a tribunal claim
Employees will be required to include evidence, in the form of the unique EC reference number given to them by ACAS, on their claim form to demonstrate that they have satisfied the EC requirement. Where the EC requirement applies and the employee fails to include the EC reference number on their claim form, the tribunal will reject their claim.
Extension of time to issue proceedings
The deadline for the majority of employment tribunal claims will be extended to take into account the EC period.
An employer can independently apply for EC. However, if the employer does:
It is difficult to anticipate the likely appetite the parties will have to reach a settlement before a claim has been issued. Whilst ACAS has reported good success rates with voluntary pre-claim conciliation, the introduction of claim fees may result in employers taking a “wait and see” approach to see if the employee is sufficiently serious to issue a claim and incur the tribunal fee.
There is also a serious risk that there will be considerable litigation (and an increase in preliminary hearings) in respect of whether time limits have been complied with, as was the case with the previous statutory dispute resolution procedures.
Concerns still remain, despite reassurance from the Government, as to ACAS’s ability to cope with the increased workload generated by EC.