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Government reforms: ACAS early conciliation

early conciliationThe Government has just published its response to its consultation on the details of the above scheme, which it announced in November 2011. ‘Early Conciliation’ is planned as a central plank of its stated aim of simplifying and streamlining the Employment Tribunal process. The Government is currently working towards an implementation date for this service in April 2014.

What did we already know?

We covered the detail of the Early Conciliation proposals in our January 2013 Newsletter Proposed changes: TUPE, Early Conciliation & Employment Agencies.

As a reminder, the proposed process is broadly as follows:

Early Conciliation by ACAS will be entirely voluntary and prospective claimants who do not want to settle the matter before the Tribunal will be able to decline it and move on to the Tribunal to submit their claim (the prospective respondent will not be notified by ACAS of the approach by the employee). Prospective respondents will also be free to refuse Early Conciliation, even if the employee is willing to go down that route.

Employers may be interested to know that the procedure will also provide for prospective respondents to request Early Conciliation where they consider there is a matter that might give rise to Tribunal proceedings if it is not settled. Where Early Conciliation is requested by the prospective respondent, the time limits on bringing claims will run as usual and there is no specified time in which Early Conciliation must take place. The case should be referred directly to a conciliator as there is less of a role for the ECSO.

What’s new?

More aspects of ACAS Early Conciliation have now been confirmed in the Government’s Response to Consultation:

What do we think?

The large majority of Employment Tribunal claims from April 2014 onwards are going to involve more engagement with an ACAS officer than we have seen up until now. The opportunity will also come far earlier than previously. For employers this means that, whereas previously you may have waited to see if a dispute with you would result in a Tribunal claim, you may well now have to take a view much earlier as to whether you are willing to negotiate a settlement. You will also want to take into account that from 29 July 2013 employees must pay an issue fee to submit a Tribunal claim. This needs to be weighed in the balance and may encourage earlier settlement for a lower price if an employee wishes to avoid the Tribunal fees, or, for an employee who continues to hold out for a higher settlement amount, you may wish to hold off from negotiations to see if the employee is committed enough to his/her claim to be prepared to stump up the Tribunal fee.

Overall, the Government’s hope is that this will help head off unmeritorious claims and prevent such claims from wasting time and money by progressing through the Tribunal system. This is because the Government believes that ACAS will be able to offer helpful guidance to claimants on the merits of their claim and dissuade claimants with no prospect of success from presenting any claims.

However, whether an already overstretched ACAS will be able to fully meet this aim remains to be seen. Also, as many employers will be aware from experience, there are some claimants that will continue to pursue their claim in spite of all attempts, ACAS included, to persuade them otherwise!

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