September 18, 2013
ACAS Early Conciliation Scheme
Early conciliation is being introduced under the Enterprise and Regulatory Reform Act 2013.
The Act contains a range of measures which will hopefully provide the right conditions to encourage long term growth and support business success.
The Act will address one of the fears that businesses have reported of having to defend an employment tribunal claim. These fears can sometimes impact on an employer’s decision to take on new staff and develop their business. Changes are therefore planned to the dispute resolution process to give parties greater opportunity to resolve their own problems, without the need for the matter to be referred to an employment tribunal. Where parties do need to come together in an employment tribunal, the process will be streamlined and simplified.
Early Conciliation (“EC”) will form part of this process. There will be a requirement for most potential tribunal claims to be referred to ACAS in the first instance. This will allow both parties an opportunity to resolve their dispute through conciliation before a claim is made. This proposal has received broad support from all stakeholders and is likely to be introduced in April 2014.
What is the aim of early coniliation?
The scheme is part of a package of reforms which have the intention of reducing the burden on businesses. The government’s aim is to significantly reduce the number of claims going through the employment tribunal system by the early involvement of ACAS. This will mean that prospective claimants will need to contact ACAS before they can even lodge an employment tribunal claim. This will replace the Pre-Claim Conciliation process currently in operation.
Where a problem or disagreement in the workplace could lead to a tribunal claim, ACAS have traditionally offered free and impartial pre-claim conciliation. The aim of this service was to help find an acceptable solution and hopefully to avoid the costs associated with a tribunal claim. In 2011/12 the number of pre-claim conciliation cases that ACAS dealt with, which did not go on to become employment tribunal claims, increased to 78% from 74% in the previous year.
Independent research conducted by ACAS in December 2012, looking into pre-claim conciliation among employers and employees, confirmed its success. It found that when staff, management time and legal costs are factored in, employers save on average £2,700 compared with resolving a dispute once an employment tribunal claim has been made.
The proposed process of early conciliation
From April 2014, it is expected that:
- Anyone who wants to make a claim to the employment tribunal will need to submit an EC form to ACAS first. This is a basic form which will require no specific detail at this stage.
- ACAS will then contact the claimant to gather further information and offer conciliation services.
- There will be no obligation on either side to enter into the process.
- Submission of the EC form will effectively ‘stop the clock’ on the timeframe for bringing a case.
- ACAS will then have one calendar month (extendable by up to two weeks) to negotiate a settlement.
- If conciliation fails, is refused or ACAS is unable to make contact with the prospective claimant, ACAS will issue an EC certificate.
- A claim may only be presented to an employment tribunal after a certificate from ACAS has been produced to confirm contact.
Submission of the EC form will effectively ‘stop the clock’ on the timeframe for bringing a claim. This means in the majority of cases, the time limit will be three months in addition to the time of conciliation. The clock will start again when ACAS has issued an EC certificate. This only differs where the EC certificate is issued at least one month before the limitation date. This means that there is a minimum one month period to enter the claim.
What does this mean for employers?
Under current arrangements, an employer will only discover the existence of a claim against them when an ET1 form arrives. Hopefully, these new measures will see an increase in the number of cases being resolved before the tribunal stage. Mandatory pre-claim conciliation is one way the Government is trying to reduce the burdens of an overloaded employment tribunal system. It is hoped that this pre-claim procedure, together with the introduction of tribunal fees, will significantly reduce the number of cases that have little prospect of success.
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