HR Focus - May 2013
ACAS Early Conciliation
The Enterprise and Regulatory Reform Act 2013
introduces Early Conciliation for all workplace disputes, with some
very limited exceptions. The scheme is part of a package of
employment law reforms introduced by the Government with the stated
aim of reducing the burden on businesses. It is currently intended
that the scheme will be launched by next Spring (2014).
Sections 7-9 of the new Act will set out the
new procedure for early conciliation through ACAS before a claim
can be commenced.
From April 2014, anyone who wants to make an
Employment Tribunal claim will need to contact ACAS first. ACAS
will then take steps to resolve the dispute before a claim is
submitted. A claim may only be presented to an Employment Tribunal
after a certificate has been issued by ACAS to confirm that contact
has been made with them.
The prospective claimant must complete and
submit to ACAS a short form, which will be known as an ‘Early
Conciliation’ form giving their basic details and those of their
employer. There is no requirement to give details of the acts or
complained of. ACAS will then contact the
claimant to collate further details and to offer conciliation
services. If conciliation is accepted, ACAS have a period of one
calendar month (extendable by up to two weeks) to negotiate
settlement. If conciliation is refused, or fails, ACAS will issue a
certificate allowing the employee to submit a claim form to the
Submission of the Early Conciliation form will
‘stop the clock’ on the time period for a prospective claimant to
submit their claim. Time will only start to run again when the
certificate is issued by ACAS. This means the time limit for most
claims will be three months plus the time during which ACAS
conciliates. If time is due to expire within one month of the clock
re-starting after ACAS involvement, there will be a minimum one
month period to enter the claim.
Whilst the requirement for prospective
Claimants to contact ACAS before they bring Tribunal proceedings
will be mandatory, the decision whether to accept the offer of
conciliation will be voluntary. After making initial contact with
ACAS, prospective Claimants who do not want to settle may decline
conciliation and proceed to lodge their claim. Prospective
Respondents can also decline to take part.
A prospective Respondent will only be
contacted by ACAS if the employee is interested in conciliation.
However, it is open to prospective Respondents to initiate the
conciliation process before an employee does so. In the event that
a claim is submitted, post-claim conciliation through ACAS will
still be available in the same way as it is currently.
What does this mean for
At present, it is possible that you may first
know of a claim against your organisation when the claim form lands
on your desk. Under the Government’s proposals it is envisaged
that, in the majority of cases, there will be an opportunity to
attempt to resolve matters without the need for Tribunal
Where you have recently dismissed an employee,
or are in dispute with an employee, the temptation is to ‘sit
tight’ and wait to see if a claim will be submitted. The early
conciliation regime will mean that, in many cases, you will need to
take a view much earlier as to whether, and by what means, you are
prepared to negotiate a solution outside any Tribunal
Remember however that, from this summer
(2013), employees must pay an issue fee to submit a Tribunal claim.
Some employers may therefore continue to ‘hold off’ from entering
into negotiations to see if the employee is committed enough to pay
Where you suspect that an employee will be
willing to see a claim through, Early Conciliation may offer an
opportunity to save money. An employee may be more willing to
settle, and to settle for a lower amount, to avoid incurring the
costs of issue.
There will also no doubt be some ‘satellite
litigation’ as to whether time limits have been complied with. This
may result in an increased number of preliminary hearings in
Tribunal cases – which would work against the Government’s stated
aim to reduce the number of cases which come before the
The approach to take to Early Conciliation
will be a real judgement call for employers in the individual
circumstances of each case.
Only time will tell exactly how the new scheme
will take shape. Indeed, ACAS has stated that the precise
arrangements for the new service will be a ‘work in progress’ which
will need to be modified ‘in light of experience’.
Earlier this year, the Government consulted on
the detail of the Early Conciliation Scheme. In February, we asked
you for your views and submitted a response to the Government
incorporating your opinions.
The Government are still analysing responses
to the consultation and hope to publish the outcomes shortly.
To view a copy of the Government consultation
To view Weightmans response to the Government
ACAS has also published its own response to
the consultation. To view the ACAS Response
Louise Singh, Professional Support