Early Conciliation Changes
More than One prospective respondent (Implementation date : 1 December 2021).
Many Employers may now be familiar with the early conciliation process that a claimant (person making a claim) must first notify Acas if they are intending the bring a claim at the Employment Tribunal.
There have been two changes to the process over the last 12 months:
Since 1 December 2020, the early conciliation period has been extended to six-weeks (instead of the one-month period with the option to extend by further 14 days).
Many of my clients have been pleased with this increase as they often had to seek agreement from the former employee for the two-week extension. Employers often need the time to gather information about the dispute and consider the merits before deciding whether to offer compensation.
From 1 December 2021, a prospective claimant may now provide the names of more than one prospective respondent on a single notification form.
This will be a welcome change for prospective claimants who previously had to complete a separate notification for each prospective respondent. This is likely to reduce the number of instances where additional prospective respondents have been overlooked at the outset.
For those of you who are less familiar with this process or are considering starting the process yourself, here is a quick recap:
What are the main features and purpose of Early Conciliation?
For claims lodged after 6 May 2014, it is mandatory for a claimant to notify Acas (Advisory, Conciliation and Arbitration Services – a publicly funded independent organisation). An Employment Tribunal will not accept claims unless the complaint has been referred to Acas. The ET1 claim form needs to include the early conciliation reference number.
The intention of the process is to involve Acas to encourage parties (the claimant and the Respondent) to resolve an employment dispute by negotiating a settlement (usually compensation) rather than letting an employment tribunal decide the case.
- A prospective claimant must notify Acas within the time limits (limitation periods) relevant for their type of claim.
- If early conciliation if not commenced within the relevant time limits, the claimant may be unable to pursue the claim at the employment tribunal. Tribunals are able to extend some time limits in certain circumstances.
It is free
- There is no charge to Acas for their involvement.
- There is no obligation on the parties to be legally represented. However, if you appoint a legal representative, they can engage in the discussions on the parties’ behalf.
It is voluntary
- Once the prospective claimant has notified Acas (usually by way of a single notification form), it is up to them if they want Acas to start discussions with the prospective respondent. They can choose to stop the process before that happens (or at any time thereafter).
- The respondent(s) will be contacted by Acas, usually by telephone or e-mail. The respondent can also stop the process at any time (so do not have to engage).
It is confidential
- What either party tells the Acas Conciliator will not be discussed with the other unless you have agreed for Acas to share it.
- All discussions within the course of the early conciliation cannot be used by either party at the tribunal hearing.
Acas are independent and impartial
- Acas does not represent either the claimant or the respondent(s).
- Acas is not part of the Tribunal system. Although they may continue to be involved as a conciliator once the claim has been filed at the employment tribunal.
Settlement will be legally binding
- If the parties do reach a resolution, the terms of the agreement will be recorded on an Acas form (known as a COT3).
- The COT3 is a legally binding contract which means that the claimant will not be able to progress those matters in a tribunal claim.
Early conciliation certificate will be issued to close the case.
- If the early conciliation comes to an end (6-week period has elapsed, or either party stops the process), without a resolution, a certificate will be issued, and the claimant is free to make a claim to the employment tribunal.
- This will be sent via e-mail or post and will contain a unique reference number (required if submitting a tribunal claim).
- If the respondent has not been notified of the early conciliation process, they will not receive a copy of this until they receive notification of a tribunal claim (if the matter progresses).
- At the parties’ request, a conciliator may continue to engage with the parties to encourage a settlement.
Should you settle your case?
At the outset of the early conciliation process, one or both parties may be reluctant to discuss the case and engage in settlement. There are advantages and disadvantages to an out of court settlement and often feelings may still be running high following the dispute, which may be clouding the discussions. It can therefore be helpful to engage your legal representative at this early stage to help you understand; the time periods, the litigation risk, the legal issues and consider an appropriate sum for compensation.
If the matter does then progress to a tribunal claim, a respondent has 28 days to respond to a claim and this early engagement can help your legal representative get to grips with your case.
Pam has been supporting organisations with early conciliation claims since May 2017 and can offer a range of support from: engaging in the conciliation, advising managers or HR on settlement negotiations, advising on tactics, supporting public sector organisations in setting up appropriate schemes of delegations, and advising both claimants and respondents on terms of settlement and legal issues and correct respondents.
For support or advice with your early conciliation claims, please contact Pam Dosanjh Phillips