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Acas early conciliation: operational from 6 April 2014, mandatory from 6 May 2014

Background to Early Conciliation (EC)

As part of the government's plans to make the tribunal system more efficient, there will be a new duty on the parties and Acas to attempt conciliation before a claim is submitted. It will be referred to as "early conciliation" (EC). 
These provisions will be brought into force on 6 April 2014 by the Enterprise and Regulatory Reform Act 2013.  Transitional provisions cover the period between 6 April and 5 May 2014 during which EC will be available to prospective claimants. EC will be mandatory for claims presented on or after 6 May 2014.

The mandatory four-step procedure

Section 7(1) of the ERRA 2013 introduces a new section 18A into the ETA 1996. This sets out four steps to the new early conciliation procedure:
Step 1. Before lodging a claim to institute "relevant proceedings" (claims listed in section 18(1) of the ETA 1996), a prospective claimant must send Acas "prescribed information" in the "prescribed manner". "Prescribed" in both of these instances means prescribed by regulations.
Step 2. Acas must then send a copy of the information to a conciliation officer.
Step 3. The officer must try to promote a settlement within a "prescribed period". The government's response to the consultation process suggested that the prescribed period would be one month (see Legal update, Government issues response to consultation on employment tribunal reform: Early conciliation).
Step 4. If a settlement is not reached, either because settlement is not possible in the conciliation officer's view or the prescribed period expires, the officer must issue a certificate to that effect. A claimant may not submit a claim without this certificate. (The officer may continue to promote settlement after the period has elapsed.)

Specific powers in unfair dismissal claims

The objective of the EC process is to avoid proceedings being issued.
In the case of a former employee bringing a claim for unfair dismissal, the new section 18A(9) of the ETA 1996 makes specific provision for a conciliation officer to be able to promote in particular reinstatement or re-engagement of the employee with either the employer, a successor or an associated employer "on terms appearing to the conciliation officer to be equitable" as a means of settlement. 
The conciliation officer can also promote settlement by way of compensation where reinstatement or re-engagement are not practicable or the employee does not wish to be reinstated or re-engaged (although it is doubtful that this is intended to limit in any way the conciliation officer's general power to promote a financial settlement.)

Effect on Time Limits

Schedule 2 to the ERRA 2013, which is given effect by section 8, inserts new sections into certain primary legislation that will allow the extension of time limits for bringing claims under those Acts.
The wording of the amendment will differ for each piece of legislation but the effect on time limits will be the same:
  • Contacting Acas for early conciliation will "stop the clock" on the tribunal time limit. The period which is ignored is the period starting the day after the claimant contacts Acas in compliance with section 18A, and ending with the day they receive a certificate from Acas marking the end of the EC process (or are deemed to have received it under the regulations). The clock starts again on the following day.
  • Where the claimant contacts Acas with less than one month of the time limit still to go, they will nevertheless have a whole month from the day they receive (or are deemed to have received) the certificate from Acas, in which to bring the claim
It will be interesting to see of the introduction of Early Conciliation when combined with the existing fees in the Employment Tribunal will actually result in an increase in pre-claim settlements or if Employers will wiatfor Claimants to pay the issue fee before making any offer of settlement other than a derisory one.
One thing is certain, Employers engaged by ACAS in any Early Conciliation process should seek appropriate employment law advice to properly assess their position and better understand their potential exposure to ensure they are negotiating from a position of strength.
Is you business already involved in pre-claim conciliation with ACAS or facing an employment tribunal claim?
EmployEasily HR can help!  We can provide representation throughout all stages of an employment tribunal case, from pre-claim conciliation up to representaion at a full hearing.
Call us today on 0800 612 4772 or contact us via our website to arrange a free, no obligation consultation.

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