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New rules now mean you can’t issue a tribunal claim without engaging in the ACAS “Early Conciliation” scheme first. How does it work?

What is ACAS?

The Advisory Conciliation and Arbitration Service (Acas) is an independent, impartial organisation mandated to liaise with both parties to an employment tribunal claim with regard to possible settlement. Acas is notified when a person makes a claim and will contact the parties to find out if they wish to take part in conciliation.

What’s changing?

On 6th April, an employee who wishes to make an employment tribunal claim will need to contact Acas first. Between 6 April and 5 May 2014, there will be a transitional period, where the new early conciliation will not be voluntary, but it becomes mandatory from 6 May 2014. Tribunal claims will then only be accepted if the complaint has been referred to Acas and a conciliation certificate issued (together with a unique reference number to provide to the tribunal when lodging any subsequent claim).

How does the new process work?

You need to notify Acas and provide them with your initial basis details. ACAS has indicated the best way to do this is via their website at www.acas.org.uk/earlyconciliation

Acas will then make “reasonable attempts” to contact you, and obtain consent to contact your employer to try and resolve the dispute. You can request that Acas liaise with your legal representative if you prefer.
If Acas cannot make contact with you, or you do not provide your consent to conciliate, then Acas will conclude that a settlement is not possible and they will issue a conciliation certificate, and you can then go ahead and lodge your claim.
If there is willing participation from both sides, Acas have a maximum period of 1 month from the date you notified them of your claim in which to try and resolve the dispute. This 1 month period can be extended by 14 days if both parties agree. If no settlement is forthcoming within this period, then Acas will issue a certificate accordingly, and you will then be free to lodge your claim.
You normally have 3 months, less one day, in which to lodge a claim from the date you have been dismissed. Once you notify Acas of your claim, it has the effect of “pausing” this time period for lodging a tribunal claim for the 1 month (or 1 month plus 14 day) period referred to above. This is to allow enough time for the conciliation process.
The time limit will start to run again once Acas issues their certificate that Early conciliation has finished, but you will have at least 1 month from this date in which to lodge a claim. This could effectively take you over the usual 3 month limitation period that you have to bring your claim.

What if I don’t want to use Acas?

Although the notification to Acas will be mandatory, it is entirely voluntary for you and your employer to utilise the service. Acas can issue a certificate at any point after you have contacted them, meaning that if either party does not wish to continue with conciliation discussions, a certificate will be issued accordingly.

Is the new process revolutionary?

Arguably, this process does not really changing anything at all as the parties can still withdraw from conciliation talks at any time after they have made initial contact with the organisation. The only change to this is that it is now mandatory to at least contact Acas in the first instance. The fact that the time limit for issuing tribunal proceedings can be extended during the conciliation period is a new departure, though.

Will early conciliation really help?

Whilst early conciliation has been introduced to help resolve cases, there are doubts that there is enough to really incentivise the parties to engage in the process in the more complex cases.

Whilst there is a duty to consider conciliation, there is of course, no duty to settle. Arguably the main benefit to Claimants is the “pausing of the time limits” for making a tribunal claim whilst the concilation process is in play. Where claims are referred to Acas towards the end of the normal 3 month limitation period, employees will definitely have longer in which to lodge their claim. This is unlikely to be welcomed by employers.

By employment solicitor, Philip Landau

For further advice, please call Philip on 020 7100 5256 or email pl@landaulaw.co.uk

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