Government reforms: ACAS early conciliation

The 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:

• All prospective claimants (with some limited exceptions) will be required to contact ACAS to discuss Early Conciliation before they can start a claim at the Employment Tribunal.
• When prospective claimants contact ACAS, they will need to complete and submit an ‘Early Conciliation Form’.
• An ‘Early Conciliation Support Officer’ (ESCO) will then make reasonable efforts to contact the claimant to obtain basic information and outline the conciliation process.
• If the ESCO is able to contact the claimant and she or he wishes to conciliate, the ECSO will pass the matter to a conciliator. If the respondent is agreeable, the conciliator will have up to one calendar month to facilitate a settlement. This conciliation period can be extended by a further two weeks with the parties’ agreement. If Early Conciliation is successful, a legally binding settlement agreement (presumably the usual ACAS COT3 agreement or similar) would be signed by the parties.
• Where the ECSO is unable to contact the claimant, or if either of the parties refuses to conciliate, or should the conciliation fail or the conciliation period expire without settlement having been reached, ACAS will issue a certificate to confirm that the claimant has complied with their duty. The claimant will then be able to present a Tribunal claim, including a unique EC reference number in their ET1 to confirm compliance.

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:

• Early Conciliation form and certificate: The Response confirms that there will be no obligation upon a claimant to provide information about the nature of their claim at this stage, the form will ask for basic information only, such as claimant and employer contact details and employment details. Where a form is received, ACAS will issue an Early Conciliation Certificate, confirming to the Tribunal that a claimant has complied with the pre-claim requirements. Importantly for employers, issues identified during the Early Conciliation System process will not restrict or bind claimants in terms of future allegations, if they go on to commence proceedings. The process will accordingly give employers an indication of the issues in dispute but may not be comprehensive.
• Exemptions from the process: Limited types of claim will be exempt from Early Conciliation, such as those involving multiple claimants, interim relief applications and claims against insolvent employers. However, claims involving TUPE or whistle-blowing will be still subject to Early Conciliation, despite requests in response to the consultation to exempt these. Where a COT3 agreement is entered into and settles a dispute in its entirety, no Early Conciliation Certificate will be necessary or issued.
• ACAS officers: Following various questions over the role of the ESCOs and ACAS Conciliation Officers, the Response clarifies that their primary role will be to provide prospective claimants with information on what the law says, to enable them to decide how to proceed. It is not the role of the ECSO or Conciliator to offer an opinion on the merits of any prospective claim, other than to point out issues such as qualifying periods or time limits. Even so, the better informed claimants are about what Tribunal proceedings entail – including now, issues such as fees – the better placed they will be to consider their options. Individual ACAS officers will have discretion over what attempts they make to contact the parties and the point at which they determine the process should be terminated.

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!