Early conciliation: the answer to employer prayers?

By Mike Emmott, Employee Relations Adviser, CIPD, @emmott_m

The risk of having to deal with employment tribunal claims is high on the list of employers’ concerns about employment regulation.  When asked how they would prefer disputes to be resolved, CIPD members have repeatedly made clear they would like to see more involvement by Acas.   

So is early conciliation, announced as part of the Enterprise and Regulatory Reform Act 2013, the answer to their prayers?  As of this month, Acas is able to offer early conciliation to help to settle employment disputes.  From 6 May 2014, it will be a legal requirement for an intending claimant to have notified Acas, otherwise their claim will not be accepted.   A helpful outline of the new arrangements is available here. 

The process is quite straightforward.  A request for early conciliation can be made by completing a notification form on the Acas website.   Acas then sends the claimant an acknowledgement, either online, by email or by post, depending on how the original notification was made to Acas.   Acas then aims to telephone the claimant by the end of the following working day to check the information provided, find out what the claim is about and explain the early conciliation process.

Once the Conciliator has made contact with the claimant and explained the next steps and the claimant agrees that they want to proceed with early conciliation, Acas will approach the employer. The Conciliator will aim to make contact with both parties by the end of the following working day.

Early conciliation builds on pre-claim conciliation (PCC), which is being phased out in parallel with the introduction of the new scheme.  The strengths of the two processes are similar.  Both parties can get a clearer idea of the strengths and weaknesses of the potential case, and explore options for resolving their differences which don’t rely on proceeding to a tribunal hearing.  The emphasis is on resolving differences, not awarding praise or blame. 

Early conciliation will also save time and money: Acas is hoping many cases can be dealt with in a few telephone calls, with agreed outcomes implemented very soon afterwards.  Independent research has shown that PCC has benefitted the British economy by around £19million, dealing with some 20,000 cases per year since 2009, three-quarters of which did not end up proceeding to tribunal.  Add to this that employers were saved an average of £3,200 in management time and legal costs by engaging in pre-claim conciliation rather than dealing with a tribunal case, and there is a clear argument for early conciliation as the way forward *.

The process is also voluntary. Although claimants are required to contact Acas before making a tribunal claim, they only need to discuss the matter and attempt to resolve it if they want to, and either they or the employer can stop the process at any time.

Any agreement reached is on terms decided by the parties, not imposed by a tribunal. And a major benefit is that agreed outcomes don’t have to take the form of financial compensation but can include things not available at tribunals, such as a reference or an apology.

If a resolution is reached through Acas, the Conciliator will record what has been agreed on a COT3 form.  If the parties can’t settle their differences the Conciliator will bring early conciliation to an end. The claimant will then be free to make a claim to an employment tribunal.

What’s the downside?  It’s not clear there will necessarily be one.  Some concerns have been expressed that claimants might miss out by being unable to put their claim in to a tribunal within the limitation period of either three or six calendar months, depending on the nature of the claim.  However, when the claimant contacts Acas, early conciliation will ‘pause’ the time limit for presenting their claim to a tribunal. This pause can be for up to one calendar month, plus a further 14 days if more time is needed.

So how will early conciliation differ from the kind of conciliation that Acas has always offered to claimants and employers?  Experience with PCC suggests that both employers and employees who have used it in the past view it positively, with nearly 9 in 10 employers saying they would use it again. Two thirds of employees also say they would recommend it to a friend in a similar situation. 

It is also likely that a high percentage of claims will be settled.  Taking hold of issues at an early stage means they are more likely to be resolved, since the parties haven’t had time to dig in and reinforce their sense of grievance.  And when both parties are invited to reflect on their options, they are more likely to appreciate the benefits of avoiding the time, costs, risk and stress attendant on tribunal claims. 

*See Measuring the Value and Impacts of ACAS, Acas, 2014: http://www.acas.org.uk/media/pdf/1/h/TRI14-Measuring-the-Value-and-Impacts-of-Acas-2014.pdf

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