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Early conciliation

Employment Law & HR
BG Purple

The latest reform to come out of the Enterprise and Regulatory Reform Act 2013 sees the introduction of ACAS mandatory early conciliation. From 6th May 2014 all prospective claimants wishing to raise an action at Tribunal will have to contact ACAS before they will be permitted to lodge an ET1.

Claimants will have the option to utilise early conciliation from Monday 6th April.

What do prospective claimants have to do?
Prospective claimants will be required to complete an Early Conciliation Form and send this to ACAS. ACAS will then contact them to ascertain the nature of the dispute and whether they would be interested in engaging in early conciliation. Claimants can decline early conciliation and still be granted an Early Conciliation Certificate enabling them to lodge an ET1, or they can choose to engage, at which point ACAS will contact their employer.

But what does this mean for employers?
Potentially, not a lot. Employers are not required to engage in the conciliation process and there will be no negative connotations for refusing to do so. 

It is worth noting that claimants do not have to pay tribunal fees until lodging the ET1. Employers may therefore consider holding off on any settlement talks until this fee has been paid. 

Employers should be aware that managers may get a call from ACAS if their name is supplied to them by the employee.  It is likely that this this will not be the appropriate person to deal with the call and so we suggest that managers are told that if they receive such a call they should pass it on to a designated person within the business to deal with it.

What if the employer wants to engage in the conciliation process?
Note that an employer may, if they wish, contact ACAS in the first instance to commence the process.  It is likely, however, that it will be the employee who takes the first step in most cases.

If both parties are willing to attempt to resolve the dispute then the assigned ACAS conciliator will have one month to reach an agreement. (There is potential for this time frame to be extended by up to two weeks with agreement of all parties).

The conciliation itself will be comparable to the current pre-claim conciliation service offered by ACAS.  The service is free and any agreement reached will be legally binding. If the parties fail to reach agreement then ACAS will issue an Early Conciliation Certificate to the claimant who will then be able to lodge an ET1. 

How will this affect the limitation period for claimants lodging a claim?
Early conciliation will essentially stop the clock on time limits. The period between the claimant contacting ACAS and the certificate being issued would be discounted. If the claimant contacts ACAS within the final month of the limitation period however they will be granted a minimum of one month following conclusion of the early conciliation process, thereby potentially extending the 3 month time limit.

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