Employers should be aware of significant changes to the Acas Early Conciliation (EC) process which were introduced this month. From 1st December 2020, the standard EC period will be six weeks. This means that prospective claimants can stop the clock on the time limit for raising their tribunal claim for up to six weeks. This is in contrast to the previous one-month EC period which could be extended by the parties by up to two weeks. There will no longer be an option to extend the EC period beyond the standard six weeks.
The EC process requires a prospective claimant to contact Acas prior to raising their claim unless the claim is exempt from this requirement. A failure to do so will likely mean that their claim is rejected by the tribunal. Acas EC is described as “mandatory” which can be misleading: whilst the claimant is required to contact Acas and obtain an EC number to include in their claim form (known as an ET1), there is no requirement on the claimant to actually engage in the process with a view to settling their claim. Acas will, at the request of the prospective claimant, simply issue the Acas certificate to enable them to proceed with their claim if they would prefer not to negotiate settlement.
Further, the passing of the EC period does not mean that parties cannot settle: the Early Conciliation period may be over, but Acas remain available to assist the parties in reaching settlement. Settlement will then be tied up in a COT3 which is a brief one or two page agreement capturing the terms. This is often preferable to the parties liaising with each other directly without the input of an experienced conciliator and having to enter into a lengthier and more complex settlement agreement.
This change has been introduced in the context of vastly increasing employment tribunal claims, a trend we expect to continue in the short to medium term. Employers facing a claim are advised to speak to their employment solicitor should they have any questions.