If an employee or ex-employee has a potential Employment Tribunal claim, from May 2014, they’re required to contact Acas first, who will then contact their employer.
There have been a lot of changes to the Employment Tribunal system in the last two years and this is the latest one, which may be significant for employers. You can read full details about the Employment Tribunal system (in England and Wales) here.
Here we look at what you should do if you are contacted by Acas.
What is pre-conciliation?
From 6th May 2014, an employee, before being able to submit a claim to an employment tribunal, must contact Acas with a view to undertaking early conciliation with their employer and Acas. They do this by completing an EC form or by phoning Acas.
An Early Conciliation Support Officer (ECSO) then makes contact with the individual. The ECSO explains the early conciliation process and takes some details from the individual and checks if they wish to proceed with conciliation.
If an individual doesn’t wish to proceed with early conciliation then ACAS won’t contact the employer. If an individual does want to proceed with early conciliation then the information will be sent to a Conciliation Officer (CO) who will contact the employer about the potential claim.
The purpose of early conciliation is to prevent a workplace dispute, that may be able to be resolved quickly, from escalating into costly and time-consuming Employment Tribunal proceedings.
The ACAS Conciliation Officer will have one calendar month to try to find a settlement between the parties. This period may be extended once, by up to 14 days, if the CO believes settlement may be imminent.
Neither party, though, is obliged to participate in early conciliation.
ACAS will issue the claimant with an ‘early conciliation certificate’ where conciliation isn’t successful, or doesn’t happen, or it’s not possible to contact the parties (as long as the individual has contacted ACAS initially), which means they can proceed to an Employment Tribunal claim. The certificate will include a unique reference number that’s needed to pursue a claim.
If a settlement is successful through Acas a legal document known as a COT3 will be issued where the parties want this (although in some case the agreement reached in conciliation will be implemented by the Employer without the need for a formal COT3)
Employers also can initiate early conciliation with ACAS (rather than the individual) although this will be more unusual.
What does this mean for the Employer?
Before early conciliation existed, traditionally the first an Employer heard about a potential employment tribunal claim was when they received the claim form ET1 which set out the details of the claim (or correspondence from the individual’s solicitor showing what legal action the individual was intending to take).
Now, with early conciliation, any manager may be contacted by Acas about an employment dispute (as the early conciliation form the individual completes ask for the employer’s contact details and it’s hard to predict who’ll be named; so who will receive initial contact). Therefore it’s important business owners, managers and any Human Resources department in a company understand how to deal with the initial Acas contact properly. Although the approach from ACAS will be ‘informal’ it must be taken seriously.
It’s advisable that any managers receiving ACAS contact should immediately tell HR or a senior manager who would be responsible for managing any subsequent tribunal claims. HR or the Senior Manager will probably be aware of the dispute and can assess the merits of the complaint and decide whether or not to participate in early conciliation. Any contact from ACAS must be treated in a confidential manner by all the recipients.
What happens after ACAS makes contact about early conciliation?
HR or the Senior Manager who will deal with the dispute should:
- Contact Acas if they need any further details about the complaint
- Let Acas know when the company is likely to have made a decision about whether they will participate in early conciliation or not (Acas will expect a quick response from the company)
- Assess the strength of the individual’s potential employment tribunal claim and how much the tribunal may award the employee if he/she was successful in their claim
- Estimate the potential legal costs and management time costs of defending an employment tribunal claim (as opposed to reaching an early settlement)
- Consider if the individual would actually pursue bringing an Employment Tribunal claim (now that fees are payable to do so, or if they are likely to obtain fee remission; first statistics from July – December 2013 showed that only 24% of fee remission applications were successful)
- Consider if there would be any reputational damage for the Company if they allowed an employment tribunal claim to proceed
- Consider if there are any non-monetary solutions that the Company could offer the individual to prevent a tribunal claim
- Consider how easily the issue could be resolved informally.
In many cases a company may consider there is little incentive to enter into negotiations until the individual has paid a tribunal fee. However, don’t rush into a decision; even if an Employer will consider entering into negotiations when a tribunal claim has been submitted, the Employer may want to submit their defence at the same time, as you’ll usually only have 28 days to lodge your defence to the Tribunal.
Once you’ve made a decision about whether to engage in pre-conciliation or not, contact ACAS. If the Company is willing to engage in conciliation you can discuss with ACAS the next steps in the process.
Other Important Points
Managers/HR/Senior Managers should at all times avoid taking matters into their own hands by attempting to resolve the issues raised without ACAS.
If the individual is still employed by the company, you should avoid any potential claims of victimisation by not penalising the employee in any way. If the individual is an ex-employee you should also avoid any further claims by not penalising them in any way – e.g. by refusing to provide a reference, or providing a bad reference because they’ve contacted ACAS.
In March 2015, it was reported that of the 60,000 cases ACAS Early Conciliation deal with between 6th April and 31st December 2014, more than 2,000 requests were related to calculating holiday pay because of recent case law in this are – more details here.
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.