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Mandatory ACAS Early Conciliation - Will it work?

Meredith Hurst Wednesday, April 30, 2014

Early conciliation via ACAS will be mandatory from 6 May 2014.  The aim of the mandatory early conciliation procedure is to try to avoid Tribunal proceedings by settling claims before they are commenced.

The new mandatory procedure will mean that those wishing to bring an Employment Tribunal claim (although there are some exceptions) must have first contacted ACAS.  A prospective claimant will be barred from bringing their claim unless they have received an Early Conciliation (EC) certificate issued by ACAS confirming that they have complied with the early conciliation procedure. This will be detrimental for claimants who are not aware of the new procedure and who submit a claim without the necessary EC certificate on or shortly before the statutory deadline.

For claimants who follow the procedure correctly, one of the benefits - apart from the obvious fact that they must do so in order to submit their claim - is the extension of time they will have to submit their claim.  The time limit for bringing a claim can be extended by up to one calendar month and then a further two weeks if both parties agree to the extension.  However, the time limit is only extended by the amount of time that early conciliation continues, and therefore employers will be able to reduce the extended time available to prospective claimants by refusing early conciliation.  This is so unless the normal time limit for bringing a claim will fall within the period between when the prospective claimant contacts ACAS and the EC certificate is issued in which case the time limit will automatically be extended by one month.

It is possible that some employers may wish to take advantage of early conciliation to obtain further details of the potential claim and, depending on its merits, to seek to settle this prior to a claim being issued.  Employers may also commence early conciliation themselves, although this approach should be used with caution as it could suggest to a potential claimant that their claim has merit.  

Unfortunately there are some pitfalls with the new rules.  The details that must be provided by the prospective claimant are minimal and there is no requirement to provide details of the potential claim.  There is also no requirement on a prospective claimant to participate in conciliation, only to have contacted ACAS.

It is also worth remembering that ACAS cannot determine the merits of any claim and are required to proceed even where they consider there is no justifiable claim.  Employers should therefore be careful when considering settling claims that may have little or no merit or value.  Employers should also ensure that any agreement reached is properly worded to help to avoid the risk of a separate claim being submitted later.

How the new procedure will work in practice and whether it will achieve its goals is uncertain at this stage.  What is certain is that the new procedure will be used by the canny employee - and could also be used by the canny employer - to their own advantage.  The question of 'will it work?' will therefore depend on who is answering the question.