Mandatory pre-claim conciliation has been the talk of the Government for a while; the Regulations implementing the early conciliation provisions contained in the Enterprise and Regulatory Reform Act 2013 (ERRA) have now been published.
What does this mean for employer?
The early conciliation process was implemented to encourage settlement of workplace disputes before matters escalate toward a costly Employment Tribunal claim.
From 6 April 2014, there is a new duty on the parties and ACAS to explore the option of Early Conciliation (EC) in employment disputes before a claim is issued. There is a transitional period between 6 April and 5 May 2014 during which the service will be available, after which it will become mandatory to contact ACAS when a workplace dispute arises before a claim can be issued.
What is the process for Early Conciliation?
The employee will need to provide the “prescribed information” to ACAS; this includes the name and address of the employee and the details of the employer. At this stage there is no requirement to provide information about the matter of the dispute.
ACAS will make initial contact with the employee. If after reasonable attempts ACAS cannot contact the employee or the employee does not wish to proceed with conciliation, then a conciliation certificate will be issued so that the employee is free to bring the claim before an Employment Tribunal.
If the employee has been contacted and wishes to proceed with conciliation, then with the employee’s consent ACAS will contact the employer. If the employer does not want to participate, then the employee will be informed and a conciliation certificate will be issued so that the employee is free to bring an Employment Tribunal claim. If both parties do want to try conciliation then ACAS has one calendar month within which to try and attempt settlement. With the agreement of both parties this period can be extended by a further two weeks if ACAS believes that there is still a reasonable prospect of settlement.
If a settlement is not reached within the conciliation period stated in Stage Three above, then ACAS must issue a conciliation certificate so that the employee can bring his claim before an Employment Tribunal. If at any time during the conciliation period ACAS believes that it is not going to be possible to achieve a settlement then ACAS can issue a conciliation certificate.
It is important to note that when settlement is reached then ACAS will draw up an agreement.
Key effects of Early Conciliation
- The Employee will have to include on their claim form a unique Early Conciliation reference number provided by ACAS to show that they have satisfied the Early Conciliation requirement, otherwise the claim will be rejected.
- The clock will be stopped on limitation periods, starting on the date the prospective claimant contacts ACAS and ending on the date they receive (or are deemed to have received) an Early Conciliation certificate from ACAS.
- Not all claims are covered by the Early Conciliation process, but the exceptions are very limited. Employees will not be able to lodge a claim unless they have either been issued with an Early Conciliation certificate from ACAS, or one of the very limited exemptions applies.
These are important changes but it is difficult to assess at this stage what the impact of the new Early Conciliation scheme will be. The Government’s intention is to reduce the number of claims by encouraging settlement early. ACAS supports the Government’s “light-touch” approach, to avoid satellite litigation and make best use of ACAS’s expertise; however it remains to be seen whether ACAS will be given the resources to cope with the significant rise in the work that it will now be required to perform.
Employers are strongly advised to seek detailed strategic advice on the ACAS Early Conciliation process and just what it means for them. Our Employment Team can advise employers on all employment law issues and changes in legislation including Early Conciliation.
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