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New Legislation

Acas early conciliation

Early conciliation is being introduced by the Enterprise and Regulatory Reform Act 2013 as part of a drive to improve the efficiency of the employment tribunal system and reduce the number of claims. Early conciliation via Acas will be available from 6 April 2014 and mandatory for claims presented to the employment tribunal on or after 6 May 2014. We give an overview of the process.

What is early conciliation?

Under early conciliation parties to a possible claim explore settlement of the claim with the assistance of Acas. It has four stages:

  1. Submission of contact details to Acas via an online form or phone by the prospective claimant.
  2. Acas contacts the prospective claimant to see if they want to conciliate.
  3. If so, Acas contacts the prospective respondent and tries to ‘promote settlement’.
  4. Acas issues an early conciliation certificate if either party cannot be contacted, they are not interested in early conciliation or settlement cannot be reached. The prospective claimant can then proceed with their claim.

What does early conciliation mean for employers?

Probably very little unless a settlement is reached and a claim avoided. This has been possible through the current Acas scheme of pre-claim conciliation (which will cease) or by direct discussion between parties. It is, however, a big change for claimants. Claims presented to an employment tribunal on or after 6 May 2014 will be refused unless the claimant has an early conciliation ‘certificate’.

Potential issues and headaches of early conciliation

The intention behind early conciliation is certainly admirable, but there are a number of issues with early conciliation.

  • The parties are not obligated to take part in early conciliation.
  • There are no penalties if a party does not take part.
  • The prospective claimant does not have to give any details of the potential claims.
  • The potential claims discussed during any early conciliation do not need to be the same as those ultimately included in a claim to the employment tribunal.
  • Acas is not interested in the merits of the claim or the employer’s response and will not give any views, judgments or decisions.
  • Acas must still play its part even if, for example, a claim is clearly out of time.
  • Early conciliation will ‘stop the clock’ and give prospective claimants a longer period to lodge their claim at the employment tribunal.

Can an employer submit a claim for early conciliation?

Yes. But if it is not successful, whilst an early conciliation certificate will be issued, the prospective claimant can still make their own submission to Acas.

In practice

This is a big change for claimants and its impact in reducing the number of claims actually lodged at an employment tribunal remains to be seen. Employers who are willing to entertain settlement potentially could achieve this through other means, but at least it does force a prospective claimant to consider settlement rather than just be steadfastly intent on having their day in ‘court’.

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