ACAS Early Conciliation became mandatory in May of this year.
This now means that before an individual can lodge most claims in the Employment Tribunal, they must first contact ACAS by completing an online form or by telephone. An ACAS officer will then contact the individual to obtain some initial information and to see if they wish to engage in the conciliation process. If they do, an ACAS conciliator will be appointed to the case and will contact both parties to explore the possibility of settling the dispute.
Early conciliation allows both parties up to one calendar month to settle the dispute which can be extended by 14 days with the parties’ agreement which is often done where the parties are close to reaching an agreement.
If an agreement is reached, a COT3 agreement will be drawn up setting out the terms of the agreement.
In the event that conciliation is unsuccessful, ACAS will issue a certificate to both parties stating that the conciliation period has ended. The individual will then have a minimum of one calendar month to submit a claim in the Employment Tribunal.
If one or both parties do not wish to participate in conciliation, ACAS will issue a certificate immediately. There is no penalty for the failure to participate by either party.
The introduction of the ACAS early conciliation process has been the government’s way of attempting to reduce the number of claims that are issued in the employment tribunal and to encourage settlement between parties in dispute at an early stage. It is difficult to say whether the process will increase the number of disputes that are settled before the issue of proceedings.
Employers are strongly urged to take legal advice upon receiving contact from an ACAS conciliator before taking any further action to avoid prejudicing their position.
Advantages of entering into the ACAS Early Conciliation Process for Prospective Re-sponents:
• Prospective Respondents may be willing to enter into negotiations at an early stage to avoid any negative publicity which may ensue following a claim being issued in the Employment Tribunal;
• Prospective Respondents may wish to limit their legal costs in defending any claim(s) which may be brought; and
• Prospective Respondents may wish to avoid management and HR spending a dis-proportionate amount of time in dealing with defending claim(s) and therefore may wish to settle at an early stage.
Disadvantages of entering into the ACAS Early Conciliation Process for Prospective Re-spondents:
• Prospective Respondents may find they are unable to assess prospects of defending the claim without full particulars of the claim and therefore may wish to wait until a claim has been issued;
• Prospective Respondents may wish to take a robust stance at an early stage to see if the Prospective Claimant will issue the claim and incur the court issue fee; and
• In the event that a settlement is achieved through ACAS Early Conciliation, employ-ers should take advice on the terms of the agreement before entering into it. Terms will need to include clauses dealing with confidentiality, non-derogatory comments and wording to explicitly state that the individual is waiving their rights to bring all claims in the Employment Tribunal to avoid any further claims being brought that were not referred to as part of the conciliation process.
If you receive contact from ACAS where an individual considering bringing a claim against your business, please contact our Employment team for advice. Either by phone on 0845 050 1958 or fill out an online application form.