Employment Law Update: ACAS Early Conciliation
23 April 2014
You may have heard about the new ACAS Early Conciliation (“EC”) procedure which has come into effect from 6 April 2014 and will become mandatory on 6 May 2014. We have set out below a summary of these changes and what these will mean for employers.
The EC procedure will be mandatory for all prospective claimants who wish to bring a claim before an Employment Tribunal for the majority of employment claims (there are a few limited exceptions). The procedure will essentially prevent an employee from bringing a claim without an “EC certificate” being issued by ACAS. The procedure will work as follows:
- Prior to bringing a claim, the potential claimant must first contact ACAS and provide them with certain details about themselves and the employer/potential respondent.
- An ACAS Early Conciliation Support Officer (ECSO) will then attempt to contact the potential claimant, explain the EC process to them and find out if they wish to proceed with a claim. If the ECSO is unable to contact the potential claimant then ACAS will issue the EC certificate.
- Should the prospective claimant wish to proceed, the case is handed over to a Conciliation Officer (CO) who will contact the claimant or their legal representative to find out if the prospective claimant wishes to conciliate and collect further details. This will usually be within two days of the prospective claimant first contacting ACAS. If the potential claimant does not wish to take part in the conciliation process or the CO is unable to contact the claimant or their legal representative then ACAS will issue the EC certificate.
- The CO will then make “reasonable attempts” to contact the prospective respondent and confirm whether the respondent wishes to participate in conciliation. What amounts to “reasonable attempts” will be at the discretion of ACAS but it is anticipated that it may involve a number of attempts over the course of a week or more. If the respondent does not wish to proceed with conciliation or cannot be contacted, ACAS will issue the EC certificate.
- Should both parties wish to conciliate, the CO will have a period of one calendar month from the date ACAS was first contacted to assist the parties in reaching a settlement. This period may be extended by a further 14 days should the CO think there is a reasonable prospect of achieving a settlement by the end of this period and both parties agree to the extension. At the end of this period (or if at any point the CO deems that there is no reasonable prospect of achieving a settlement), ACAS will issue the EC certificate.
Taking part in the EC procedure will extend the time limit for an employee to bring a claim before an Employment Tribunal and the procedure therefore cannot be used as a “delaying tactic” by employers.
What this means for you as an employer:
Essentially, the new procedure means that there are enhanced opportunities for a matter to be settled prior to a claim being brought before an Employment Tribunal. Where an employee is looking to bring a claim against your company, you may receive a call from ACAS asking if you want to participate in the EC process. If you do receive such a call it means that the employee will already have expressed an interest in conciliating and if you would want to participate in early conciliation (and attempt to settle the matter without the costs involved in a tribunal claim) you should endeavour to respond to ACAS as soon as possible to prevent the EC certificate (and consequently the claim) being issued.
For further advice on bringing or responding to an Employment Tribunal claim or conducting pre-termination negotiations, please contact our Employment Team.
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