Acas Early Conciliation – as an employer what do I need to know?
On 6 April 2014, the early conciliation scheme became available to prospective claimants. The scheme is optional for the first month and then from 6 May 2014 it will become mandatory for most claims. Early conciliation was announced as part of the Enterprise and Regulatory Reform Act 2013. Its aim is to help settle claims before they reach an Employment Tribunal.
Previously, ACAS had the power to initiate conciliation between parties in respect of certain claims but it was a voluntary service - this has now changed. Early Conciliation (“EC”) is a new duty on parties to attempt conciliation before a claim is submitted to an Employment Tribunal (“ET”).
For ET claims lodged on or after 6 May 2014 it will be a legal requirement for a prospective claimant to have made an EC notification to ACAS. A claim will not be accepted unless the complaint has been referred to ACAS and a conciliation certificate has been issued (the certificate confirms that the EC requirements have been met).
ACAS has produced a guide: Early Conciliation explained to help understand the process.
There are transitional and saving provisions which apply to applications and requests to ACAS on or before 5 April 2014, which are outside the scope of this alert.
The new position from 6 April 2014
The EC procedure is summarised below:
- Before a prospective claimant presents a claim form to an ET, they must provide ACAS certain information about the matter. This information can be sent on an EC notification form, either online or by post. Alternatively, prospective claimants can phone ACAS and ACAS will complete the form for them. The form asks for details such as the name of the prospective claimant and their employer (i.e. the prospective respondent); details such as when they started and finished work and their job title. The prospective claimant will need to complete a separate EC form for each prospective respondent (if there is more than one) or they must name each prospective respondent if telephoning ACAS.
- Once ACAS has received this information, an early conciliation support officer (“ECSO”) will make “reasonable attempts” to contact the prospective claimant by phone. The purpose of this call is to check the information, find out what the claim is about and to explain the EC process. ACAS has indicated that “reasonable attempts” means “numerous calls, made at different times of the day, over a two-week period.” If the prospective claimant wishes to proceed with conciliation, their information will be sent to a conciliation officer (“CO”).
- A CO will then contact the prospective claimant. The CO will typically be the same individual as the ECSO. They will explain the next steps and if the prospective claimant agrees to proceed with EC the CO will again make “reasonable attempts” to contact the prospective respondent (or their representative). The aim is for both parties to be contacted by the end of the following working day.
- The CO will then try and promote settlement between the parties during the “prescribed period” which is intended to be up to one calendar month from the date the claimant first makes contact with ACAS. However if both parties agree that longer is needed, the period can be extended, only once, by a further 14 days. Conciliation will typically take place over the phone but if helpful a meeting, chaired by the CO, can take place.
- An EC certificate will usually be emailed to the prospective claimant (and prospective respondent if contacted) in the following circumstances:
- if the CO cannot make contact with the prospective claimant or the prospective respondent over a reasonable period of time. This period of time has not been defined and is left to the discretion of ACAS;
- if the prospective claimant or prospective respondent indicates that they do not want EC;
- if the CO considers that settlement is not possible or the prescribed period (or an extension) expires without settlement been reached;
- if either the prospective claimant or prospective respondent withdraws from the process.
The certificate will contain a unique reference number which the prospective claimant must provide on their claim form (ET1) when submitting a claim to the ET.
What happens if conciliation is successful?
If a resolution is reached through ACAS, this will be recorded on a COT3 which is an ACAS settlement document. Both parties will sign this document to record their agreement to settlement. By signing the COT3 the prospective claimant will not be able to make an ET claim in the matter.
An EC certificate will not be issued where the EC settles the only issue or all of the issues in a matter. It is unclear whether an EC certificate will be issued where only part of a dispute is settled. It seems likely however that ACAS will issue an EC certificate where settlement is reached on only part of the dispute so that the prospective claimant can bring a claim about the unresolved issues not covered by the settlement.
Claims not covered by mandatory EC
EC will be mandatory in all but very limited circumstances. The claims covered by mandatory EC are listed as “relevant proceedings” in section 18(1) of the Employment Tribunal Act 1996. Claims which are not covered by the mandatory procedure include, for example, payments out of the national insurance fund.
Other circumstances in which a request for EC is not required
In addition to a very limited number of claims there are other circumstances in which a request for EC is not required, these include:
- where the EC requirement has been complied with by another prospective claimant who has presented “relevant proceedings” related to the same matter;
- where there is a claim which is not a relevant proceeding on the ET1;
- where the prospective respondent has already contacted Acas in relation to a proposed claim;
- where the proceedings are an application for interim relief;
- where the prospective claimant is instituting proceedings against any of: (1) the Security Service; (2) the Secret Intelligence Service; or (3) GCHQ.
A claim form will be rejected by an ET if it does not contain one of the following: (1) an early conciliation number; (2) confirmation that the claim does not institute relevant proceedings; (3) confirmation that an early conciliation exemption applies.
What happens to a prospective claimant’s time limits for submitting claims?
Broadly speaking, the time limit for bringing an ET claim is usually 3 months (less one day) from the date of termination or the date of the act complained of. When a prospective claimant makes contact with ACAS this will ‘pause’ the time limit in respect of presenting their claim to an ET. The pause is for up to one calendar month, plus an additional 14 days if necessary. The time limit for submitting their claim will start to run again once the prospective claimant receives the certificate that EC has ended. The EC certificate will be deemed to be received, if sent by email, on the day it is sent (if by post on the day on which it would be delivered in the ordinary course of the post).
If the prospective claimant’s claim was already out of time before an EC form was submitted it continues to be out of time.
Claims relating to an employer’s failure to provide a written statement of terms or amendments thereto are not covered by the provisions extending time for claims to be brought.
Calculating time limit extensions
Set out below is the method for calculating the extension of time for claims:
Day ‘A’ – is the day on which the prospective claimant telephones ACAS or their EC form is received.
Day ‘B’ – is the day on which the prospective claimant receives the EC certificate by email or the date on which it would be delivered in the ordinary course of post.
The period beginning with the day after Day A and ending with Day B is not counted when working out when a time limit expires unless the time limit for bringing a claim would expire during the period beginning with Day A and ending one month after Day B. If it does expire during this time, the time limit for bringing a claim expires at the end of that period instead (i.e. one month after the receipt or deemed receipt of the EC certificate i.e. Day B).
The calculations may be tricky for some prospective claimants. Nevertheless, ACAS has recently indicated that it will not give employees specific information on their new limitation date if EC is unsuccessful. ACAS will only provide general information on how the scheme extends limitation dates to prospective claimants.
In what other circumstances can EC be requested?
ACAS can also conciliate in either of the following circumstances:
- A prospective respondent can request the services of a CO in respect of a matter which, if not resolved, is likely to give rise to “relevant proceedings” against them.
- A prospective claimant can request the services of a CO in respect of a matter which if not resolved is likely to give rise to “relevant proceedings” by them to which the EC requirement does not apply because the proceedings are exempt.
If a prospective respondent has contacted ACAS in the first instance, this will not extend the time limit for any claim the prospective claimant wishes to bring. However if the prospective claimant subsequently sends an EC form to ACAS relating to the same dispute, this will trigger the EC procedure.
What steps can an organisation take to prepare for these changes?
- If you have agreed to EC use it as a means by which to find out as much as you can about the prospective claimant’s case. The general rule is that provided you act honestly and reasonably communications to a CO are not admissible in evidence in ET proceedings (unless consent is given). By entering the discussions you are not committed to settling the claim and can withdraw from the process at any time.
- Train all HR staff and managers on the new ACAS procedure. Line managers will need to know the process should they receive a call from ACAS. Employers can provide a named point of contact to ACAS for this purpose.
- Whilst most relevant to the prospective claimant, keep a track of the prospective claimant’s time limits for submitting a claim following EC as this may help inform how you strategically handle the case.
- Finally, remember that the EC process is actually voluntary – you do not have to participate and there are other ways in which a claim can be settled e.g. negotiating directly (or through a legal representative); private or judicial mediation etc.
For further information on the above, please contact the CM Murray LLP team
at email@example.com on +44 (0) 207 718 0090
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