As of May 2014, ACAS Early Conciliation has become a mandatory requirement. But what exactly does this mean for employers and employees?
Save from a limited number of claims, an individual who wishes to bring a claim at the Employment Tribunal must first contact ACAS; this includes claims for the following disputes:
Ordinarily, it is for an employee to make contact with ACAS to initiate the process. It is, however, possible for an employer to initiate the process, should they wish to do so – there may well be times which it would be tactically advantageous for an employer to do so. Employers should note, however, that the time for the employee to issue a claim will not be stopped and there will be no extension of time.
Firstly, the employee will need to complete the ACAS Early Conciliation notification form which can be accessed online. Employees should considering using the employer’s appeal or grievance procedure, or letting such process runs its course before contacting ACAS, unless by doing so would result in the employee from being ‘out of time’.
Like with civil claims, there are time limits that both employees and employers should be aware of. For the majority of employment tribunal claims, the time limit is three months less one day. This is referred to as the limitation period.
When an employee completes the ACAS Early Conciliation notification form, the clock stops ticking on the limitation period. The clock starts again once Early Conciliation ends with ACAS sending to the individual the ACAS Early Conciliation Certificate. Following the issuing of this document, an employee is then able to work out the exact new time limit in which to issue a claim.
Once the Conciliation Form is submitted, ACAS will contact the employee in order to take further details and to see whether the employee wishes to conciliate or not.
Where the parties have agreed to conciliate, the ACAS Early Conciliation process lasts one month from the date that the Early Conciliation form was received by ACAS. An extension can be agreed by up to two weeks if there is a reasonable prospect of the parties achieving settlement.
Employers should be aware that whilst there is a requirement in most cases for the employee to complete the ACAS Early Conciliation Form, if the employee chooses not to conciliate, the Early Conciliation Certificate will be issued and the employee is free to issue a claim at the Employment Tribunal.
Employers should also be aware that, previously, they could be certain that a claim would not be brought by an employee if the time limit of three months had elapsed. The Early Conciliation process now extends the time limit for bringing a claim; the employer may not be aware that the employee had initiated the ACAS Early Conciliation process. As a result, employers are now having to wait a further 4 – 6 weeks to find out whether or not a claim has been issued.
Employers should take note that in some circumstances, an employee may seek to use the ACAS Early Conciliation process tactically to their advantage in order to extend the time limit in order to issue a claim and, in those circumstances, an employer should consider whether they wish to engage in Early Conciliation or not.
Given the abolition of the Employment Tribunal fees this summer, there is a greater emphasis on ACAS Early Conciliation which may resolve matters at an early stage.
Previously, employers were waiting to see whether the employee would incur the issue fee before considering whether to enter into settlement discussions.
We are often asked to advise on whether an employer should engage in the Early Conciliation Process.
Whilst there is no hard and fast rule with regards to the same, engaging in Early Conciliation is likely to be case specific. If an employer believes that an employee is likely to issue proceedings, then there would be no harm in seeking to use the services of ACAS in order to try and resolve the dispute at an early stage, thereby saving potential time and expense. It may also elicit information which may assist in due course, including how the employee or their solicitors view the claim, the remedy being sought etc.
Employers should engage in the Early Conciliation process with an open mind and avoid having hard and fast rules in respect of the process. They should treat each case on its particular merit, especially given the abolition of employment tribunal fees as mentioned above.
Employers should also consider who should deal with the Early Conciliation process. Should this sit with a member of HR or the managing director? Having an agreed policy which is communicated will prevent either the wrong people dealing with ACAS or that no one in the organisation knows who matters should be referred to. Employers should note that ACAS has an obligation to make reasonable contact with an employer. If ACAS are unable to make such reasonable contact, the Early Conciliation Certificate will be issued and the employee will be free to issue a claim at the Employment Tribunal. This may mean that an employer has potentially lost an opportunity to resolve the matter at an early stage.
If you feel that, as an employer, you require more legal assistance relating to the ACAS Early Conciliation process, please contact our Employment Department – our team of expert solicitors will be able to assist. Call on 01708 229444 or email us using our contact form.
This article was written by Alexander Pearce, Employment Law Associate at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of October 2017.