The ever changing world of employment law: Early conciliation

As of yesterday, 6th May, new legislation requires any claimants to get a certificate number to confirm that they have completed ACAS ‘pre-action conciliation’, before filing an employment tribunal claim. This has been introduced by the government as another elements of its ongoing reform of employment law.

What is ‘Early Conciliation’?

Early conciliation is a process that requires employees to submit a form (EC form) to ACAS before filing an employment claim. The EC form sets out the employee’s details and the details of their employer; although no information is required at this stage about the nature of the claim.

Once the EC form has been submitted and the prospective claimant has confirmed that they wish to undertake early conciliation (the employee does not have to participate any further in the process), ACAS will appoint a conciliator to the case. The conciliator will contact the employer, and ascertain whether they wish to participate in early conciliation (participation on the employer’s part is not mandatory either). Where both parties consent to undertake early conciliation, the conciliator will have one month to promote a settlement between the parties. If the conciliator thinks there is a reasonable prospect of achieving settlement ACAS can, with the consent of both sides, extend discussions for a further 14 days beyond the end of this one month period.

If the parties are able to settle the dispute, the settlement can be recorded in a settlement agreement (COT3). ACAS will then issue a certificate to conclude the dispute.

If settlement is not reached, because the conciliator considers that settlement is not possible, either party withdraws from the process or is not interested in pursuing conciliation or the prescribed period expires, a certificate will be issued by the conciliator confirming that the parties have satisfied their obligation to engage in early conciliation. The employee can then proceed to bring the claim.

What about Employers?

The government intends that employers will be able to request early conciliation where they consider that a matter might give rise to tribunal proceedings if it is not settled.

Key features of Early Conciliation:

Information and options – Parties are able to get a clearer idea of the case’s strengths and weaknesses and therefore explore the feasible options to settle their differences, prior to proceeding with a tribunal.

Time and money – Early conciliation is totally free of charge from ACAS. Also, if parties can settle their differences, this will avoid the expense, risk and stress of going to tribunal. Furthermore, early conciliation can be a quick solution as many cases can be dealt with in a few telephone calls, with agreed outcomes implemented very soon afterwards.
Impartiality – ACAS makes sure it operates in a neutral position as it does not represent either the employee or the employer.
A voluntary process – Although prospective claimants are required to contact ACAS before making a tribunal claim, they only need to participate in discussing the matter and attempt to resolve it if they want to. And the process can be stopped at any time by either party.

Independency and confidentiality – Since ACAS is not part of the tribunal system, what a clamant tells them can only be discussed with the other party if the claimant agrees that it will be helpful in trying to settle the case. Otherwise, whatever is discussed during the course of conciliation cannot be used by either party at a tribunal hearing.
Control – Since agreements to avoid a tribunal are made by the parties, agreed outcomes can include things not available at tribunals such as a reference or an apology.
Trust – In the case where the claimant is still employed, early conciliation increases the chance of avoiding a permanent breakdown of the employment relationship – if that is what both sides want to achieve.

For more information about Early Conciliation contact David Hacker,or Emma Thompson.