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ACAS Conciliation – To Conciliate or Not To Conciliate?

June 23rd, 2014

Some of you may be wondering since my last article as to how the land actually lies with regard to ACAS.  In this update, I will explore the role of ACAS, the process of mandatory conciliation, what could be achieved and what you should be aware of.

Background

ACAS stands for the Advisory Conciliation and Arbitration Service.  It is an organisation, which is independent and impartial.  It is mandated by the Government to assist parties embroiled in an employment dispute to resolve matters without needing to litigate.  It does not charge for its service.

For any Employment Tribunal claim lodged on or after 6th April 2014, it is a legal requirement for the party making any allegations to notify ACAS.  Unless and until this has been made and ACAS have issued a certificate, which confirms that the Early Conciliation (“EC”) requirement have been met, and the claims are submitted in good time, the Employment Tribunal will not accept/consider the claims.

The EC scheme is another attempt by the Government to reduce the number of Employment Tribunal claims.  Whether this will work remains to be seen.  Naturally, some employers may decide it’s worth taking the risk in sitting it through and seeing if an employee or former worker is prepared to issue a claim and pay Employment Tribunal fees.

Consideration and Potential Benefits

If you are presented with the opportunity to resolve an employment dispute via ACAS, it is advised that you carefully assess whether this is something you wish to embark upon.  It would certainly be worth considering if your business leader or senior member of staff has been accused of condoning an illegal activity, which if aired in public could stifle your business.  So that you are able to make an informed decision, the following key advantages should be borne in mind:

  • In a case where the parties’ emotions are high and a firm stance has been taken, such as in relation to discriminatory comments being made in the office, ACAS could break the deadlock.
  • It could enable you to glean the entire case that is being made and therefore allow you to deploy any necessary measures to reduce or remove the risks associated with litigating.
  • You may well, if you’re an employer, establish the driver for each and every complaint and what could be done to satisfy the matter once and for all.  In my experience, many complainants are not seeking compensation but simply seeking acknowledgment of the wrongdoing.
  • It can restore trust, if the complainant remains to be employed, and it can also increase the chances of avoiding a permanent breakdown of the employment relationship, if that is what all the parties want.
  • It can be swift.  Most cases will be resolved within a matter of weeks.
  • You are in control of the outcome, as the process is a proactive one.  This contrasts with litigation where the outcome is not really in any party’s control.
  • Any agreed resolutions could include creative ones which would not otherwise be available at Tribunal or Court, such as a reference, apology, announcement and early retirement/access to pension.
  • It can save a great deal of time, money and stress if the parties engage in meaningful settlement discussions.
  • On the whole it is confidential.  No party can use the information that is conveyed at a Tribunal hearing unless it is deemed to be admissible evidence or the person who communicated the information has given their consent.
  • If desired, a party can be represented by their solicitor.
  • ACAS does not and cannot take sides or make judgments.  Their role is to simply help people find a solution.

EC Exclusions 

Even though EC will apply in almost all cases, it is recommended that it be considered in all cases given the benefits you could gain.  Excluded EC proceedings should you wish to know include:

  • A party already having an early Conciliation Certificate Number.
  • ACAS not having the power to conciliate on some or all of the claims in dispute.
  • An employer has already asked ACAS to get involved in the dispute.
  • An application for interim relief in cases concerning unfair dismissal.
  • Claims being made against the Security Service, Secret Intelligence Service or Government Communications Headquarters.

EC Process

Insofar as the mandatory EC process is concerned, it can be broken down into the following steps:

First Step

A prospective complainant must provide “prescribed information” in the “prescribed manner” to ACAS.  This may be done using an EC form or by telephoning ACAS.

Second Step

An EC Support Officer (“ECSO”) will make initial contact with the complainant.  The ECSO will explain the EC process, take some details from the complainant and check that they wish to proceed with conciliation.  As long as they do, their information will be sent to an ACAS Conciliation Officer (“CO”).

Third Step

The CO will contact the complainant.  In addition to discussing their complaint, the CO will check whether the complainant agrees to the CO contacting those accused of wrongdoing.  As long as the CO is able to contact such parties and they are willing to participate in the EC, the CO must try to promote a settlement between the parties within the “prescribed period” (“Period”).  (The Period is 1 calendar month from the date on which the complainant made initial contact with ACAS.  It may be extended once, by up to 14 days.)

If a settlement is reached, the CO will record the terms of settlement.  (Since the agreement will be legally binding it is worth seeking advice before the terms are agreed.)

What happens if no settlement is reached depends on the circumstances:

  • If ACAS is not able to contact the parties or if one party or all parties do not wish to participate in EC a certificate will be issued (“EC Conciliation Certificate”).
  • If a settlement is not reached, either because the CO considers that settlement is not possible, or because the Period expires, an EC Conciliation Certificate will be issued.  The EC Conciliation Certificate will give the complainant a unique reference number which he/she will have to include on their ET1 should they go on to present a claim.

EC Time Limits

In order to allow sufficient time for EC to take place, changes have been made to the time limits in which a claim can be pursued in the Employment Tribunal once the EC process has commenced.  Generally the time limit in which to bring a claim is 3 or 6 calendar months depending upon the nature of the claim.

When a complainant contacts ACAS, this will “pause” the time limit in which to make an Employment Tribunal claim.  The time limit will start to run again when the complainant receives EC Conciliation Certificate.  As calculating relevant time limits is not as straightforward as it should be due to the manner in which the relevant legalisation has been drafted, and can be interpreted, parties should err on the side of caution by seeking further advice.

Bhavna Patel is an employment law specialist.  If you would like to speak to her about any aspect of this article or any employment related matter, please telephone her on 01494 773377 or email hello@lennonssolicitors.co.uk.

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