Focus On... ACAS Early Conciliation

1. FOCUS ON… ACAS EARLY CONCILIATION

ACAS Early Conciliation became compulsory on 6 May 2014. Employees or former employees must now contact ACAS prior to issuing most claims at an Employment Tribunal.

Due to the introduction of fees (which individuals have to pay before issuing a claim at Tribunal). Tribunals have seen a significant drop in the number of claims being issued. The introduction of ACAS Early Conciliation may see more individuals making initial contact with ACAS to try and negotiate with their employer (or former employer) even though they may not subsequently issue proceedings.

The Early Conciliation Process

The process of Early Conciliation is as follows:

1. The employee submits a short compulsory form online or over the telephone.

2. When this is received by ACAS, a process called “stop the clock” takes effect. This means that the time limit for bringing claims to the Tribunal (usually three months) is paused to allow Early Conciliation or settlement discussions to take place. This pause is for up to a month (although an extension of two weeks is possible if the parties are in active talks).

3. An employer can also make a request for early conciliation, however if this occurs, the “stop the clock” process does not apply.

4. Following the submission of the form, ACAS will then contact the individual to obtain further details. This will either be the same day or the following day.

5. If the individual wishes to explore Early Conciliation, ACAS will then attempt to contact the employer or former employer using the details provided by the individual.

6. If the employer wants to engage in discussions, Early Conciliation will take place.

7. If an agreement is reached, ACAS will record any agreement on a COT3 which prevents the individual issuing a claim at Tribunal (similar to a Settlement Agreement, formerly Compromise Agreements).

8. If agreement is not reached (and it is not mandatory for either party to engage in Early Conciliation), ACAS will issue a certificate which allows the employee to bring a Tribunal claim. Under the “stop the clock” process, the individual will have a minimum of one month following the end of Early Conciliation to submit a claim to the Tribunal.

Practical Tips for Organisations

• Be prepared for the initial contact from ACAS - ACAS will use the details provided by the individual to contact you. As such, it may be the case that ACAS will contact a line manager/supervisor rather than the decision maker. It is therefore important for you to ensure that all management are aware of ACAS’ role and who calls should be directed to. ACAS have set up a national contacts list to enable organisations to nominate a contact, please contact us for further details in relation to this.

• Collect any relevant evidence – Where you are aware there is likely to be a claim or contact from ACAS, make sure you can access any relevant documents and information quickly to provide an informed and strategic response to ACAS.

• Make sure all calls are returned - All calls from ACAS should be taken or messages returned. Failure to do so may result in a Tribunal claim being submitted by an individual rather than a settlement being entered into. This is likely to be more costly and time consuming for you as you would need to draft a defence and any settlement entered into after the issuing of proceedings is also likely to include the fee the individual had to pay to issue the claim.

• ACAS are not independent legal advisors - ACAS will not be able to advise you whether an offer made by an individual is a reasonable offer in the circumstances. Therefore it is advisable that you seek advice from us to prevent you from paying over and above the amount the individual would be entitled to if they were successful at Tribunal.

• Contents of the COT3 agreements - You should ensure that the COT3 agreement covers all claims which could be brought by the individual. Failure to include all claims could result in further claims being brought by the individual.  It is therefore important that you liaise with us at this stage – if not earlier!

• Will the individual issue proceedings? Tactically, you could consider whether to wait and see if the individual issues proceedings before negotiating a settlement. Where you want to explore settlement the Early Conciliation process may present a good opportunity to settle quickly and where possibly cheaply! However, since the introduction of fees, the number of claims have significantly reduced and therefore you may want to wait to see if they issue proceedings. That said, as set out above, you may find it more difficult and expensive to settle after proceedings have been issued.

• You will not always hear from ACAS even when an individual submits a claim – ACAS will only become involved if the individual AND the organisation want to enter into conciliation discussions. If the individual is not interested in conciliation, ACAS will not contact you and they will be allowed to proceed with issuing a claim at Tribunal.

• Take the initiative – In some circumstances, you may want to begin the ACAS Early conciliation process. If so, you do not have to wait for ACAS to contact you. If you make the initial contact with ACAS, the time limit for the individual to issue a claim at the Tribunal is not paused. Therefore, in some circumstances, this may be a useful tactic which could put pressure on an individual to settle quickly.

For more information in relation to Early Conciliation, please contact a member of the team.