Employment Law Update: ACAS Early Conciliation

Acas Early Conciliation came into force on 6 April this year.  It imposes a duty on parties to attempt conciliation via Acas before claims are issued (with some exceptions) and will be mandatory for claims issued on or after 6 May 2014. The onus will be on the claimant to follow the procedure, but there is also scope for employers to request it if they think they are likely to receive a claim from an ex-employee.

The benefits for claimants appear to be the ability to attempt settlement before paying the relevant tribunal fee, and the fact that the clock for limitation pauses when the claimant contacts Acas to invoke the procedure. But what will this new process mean for employers?

Employers cannot be forced to conciliate if they do not want to. If one or both parties don’t want to conciliate, a certificate is issued and the claim proceeds.

If the parties engage in early conciliation, Acas will liaise with them in an attempt to reach settlement for one month. This can be extended for a further two weeks if Acas believe there is a reasonable prospect of achieving settlement. If conciliation fails at the end of the relevant period, or if Acas considers that there is no prospect of settlement, the early conciliation certificate is issued and the claim proceeds.

The process seems straightforward enough but critics have suggested that this is just another administrative hurdle for those issuing claims and some have predicted that the take-up for early conciliation will be limited. Acas has remained positive and maintains that the scheme will help employers to save the costs associated with defending employment tribunal claims. If a claim settles, there are undoubtedly costs savings but the amount usually depends on timing. Many settlement discussions are prompted by disclosure of a damaging document, after exchange of witness statements or close proximity of the hearing date, by which time significant costs have been incurred.

To be successful, early conciliation will require a leap of faith for employers as they are effectively being asked to settle before they have seen the claim they are expected to defend. At such an early stage, discussions are likely to be on a commercial basis with a view to saving costs. However the costs considerations are usually substantially different for claimants and employers, even with the introduction of tribunal fees.

For further information please contact Roisin Patton on 0843 224 7936 or email roisin.patton@squareonelaw.com