ACAS will shortly launch a new early conciliation (EC) service with the aim of resolving employment disputes before they reach full litigation stage. This service can be used voluntarily by employees or employers from 6 April 2014 but will be compulsory for Employment Tribunal claims lodged on or after 6 May 2014. On the face of it, this service should be positive for employers but some mischief may be caused in how in reality it operates.

From 6 May 2014 onwards, anyone wishing to lodge an Employment Tribunal claim will (with a few limited exemptions) be required to contact ACAS under its EC Service. Failure to do so is likely to see the claim rejected by the Employment Tribunal. 

Looking at what will happen with a bit more detail:

  • Almost all Tribunal claims will be caught by the new rules;
  • Any communication with ACAS under the scheme will be 'without prejudice', namely it will not be fed back to the Tribunal;
  • A claimant must notify ACAS (either on an ACAS form or via telephone) of their and their employers details before any claim is made in the Tribunal – this is the start of the EC process;
  • The clock will be stopped on deadlines for filing Employment Tribunal claims whilst the EC process is ongoing;
  • ACAS will seek to contact the parties and promote settlement;
  • There is no obligation on either party to respond to ACAS or to discuss settlement;
  • The EC process can run for up to 1 month (although this can be extended in limited circumstances or cut short if one or neither party wishes to discuss settlement);
  • At the end of the EC process, if the matter cannot be settled, ACAS will issue a certificate with a unique ID number confirming that the EC process has been completed; and
  • Only once ACAS have issued their EC certificate can a claimant lodge a claim in the Tribunal.

Whilst the concept of EC is commendable, there will undoubtedly be issues relating to a number of aspects of the EC process. The Claimant is not required to provide any details of their claim. Either party can avoid settlement discussions simply by ignoring ACAS' attempts to contact them. The EC process could be used in a calculating manner to extend the timeframe for lodging a claim by an extra month which could prolong uncertainty for employers for up to 4 months.

In saying that, the intention is that there should now be more scope to resolve complaints, which if it saves time and money, can only be a good thing.  Employers should be prepared to receive more calls from ACAS and should think carefully and strategically when faced with this scenario. If settlement can be achieved great, but it may also be a good platform to gain a better understanding of whether the claimant is seriously contemplating litigation, what claims they are seeking to bring and whether they have mitigated their loss by securing alternative employment. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.