ACAS Early Conciliation introduced from 6 April 2014 - Some Questions Answered

The ACAS Early Conciliation scheme was introduced on 6 April 2014. Whilst the scheme has been launched from this date, it will not be mandatory for claimants until 6 May 2014.

     1.     Do all Claimants have to submit an Early Conciliation Form?

Most Claimants who wish to bring claims in the Employment Tribunal must first complete an Early Conciliation Form and submit it to ACAS, or telephone ACAS to provide the required information.

A small number of claims are exempted from early conciliation (e.g. group actions provided one of the group has made a request for early conciliation).

2.     What information must the Claimant provide?

The Early Conciliation Form only requires basic information including the name and address of the parties and their telephone numbers.  The claimant is not required to provide any detail about the claim on the form itself.  If the basic information is not provided, ACAS can reject the Form.  

A prospective Claimant will need to either submit a separate Form in respect of each prospective respondent, or identify each prospective respondent when telephoning Acas. This was not initially specified under the rules, however this amendment came into force on 20 April 2014 under the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2014.

Once the Form has been received, the Claimant will be telephoned by ACAS and will be given information about the early conciliation process and asked for basic information about their dispute.

Employees will not be able to bring most types of employment claim without receiving an Early Conciliation Certificate which provides a unique reference number which must be quoted on their ET1 form.

3.     Are the parties required to attempt early conciliation?

No.  The parties are not required to attempt conciliation and the only mandatory step is for the Claimant to submit an Early Conciliation Form to ACAS.  Once an employee has done so, either party can simply refuse to take part in conciliation by making this explicit.    

If early conciliation is refused or fails, ACAS will issue an Early Conciliation Certificate which will enable the Claimant to issue an ET1.  The Respondent will only receive a copy of the Early Conciliation Certificate if conciliation is attempted.

4.     Will the Tribunal be told why the parties have not been able to successfully conciliate?

No.  The requirement to provide a unique reference number is a purely procedural requirement and the Tribunal will not be told, or ask whether early conciliation has been attempted, rejected or failed. 

Neither party will therefore be prejudiced before the Employment Tribunal by the information they provide in respect of early conciliation or by their response to a request to conciliate. 

5.     Does this process affect the limitation date?

Yes.  Claimants will have an extension of time in which to issue their claim determined in one of two ways. 

• The limitation clock will stop running for up to six weeks from the date the Claimant contacts ACAS, and ends on the day after he/she receives the Certificate. 
• However, if the ordinary limitation period ends in the period beginning with the day when the Claimant contacts ACAS and ending a day after the Certificate is received, the time limit is deemed to expire one month after receipt of the certificate.

This will give Claimants more time to issue their claim, to allow early conciliation to take place, but may cause difficulties in correctly determining the extended limitation date. 

6.     Is it worth attempting early conciliation?

As an employer, there are pro’s and con’s in engaging in Early Conciliation.

• The advantages of attempting conciliation are that you will have advance notice of a claim (and the reasons supporting it) and may be able to settle it cheaply, or start to prepare your case.  Employment Tribunal fees are expensive and not all employees will be able to pay these (unless they have a policy of legal expense insurance/or the support of a union which you usually will be unaware of).  However, Claimants may have unrealistic expectations of the value of their claims and may not be in a position to properly assess the strength/weaknesses of their claim. In addition, ACAS will not give an explicit opinion on merits but may provide information to assist the parties.
• Employers may reject early conciliation and wait and see if the Claimant has the funds to issue proceedings (for low value claims, the fees can actually exceed the amount being argued over) and you may be able to avoid claims altogether.  You may also be able to strike out claims if the Claimant misses limitation.

A copy of the Early Conciliation Form and further ACAS guidance can be accessed here.