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ACAS will then take steps to try and conciliate or resolve the dispute before a claim can be submitted. This is known as ‘Early Conciliation’.
A claim may only be presented to an Employment Tribunal after a certificate has been issued by ACAS to confirm that contact has been made with them.
The prospective Claimant must first complete and submit to ACAS a short form providing their basic details and that of the employer. This is known as the ‘Early Conciliation’ form. The degree of detail in these forms is relatively minimal and there is no requirement for the prospective Claimant to give details of the acts or incidents that are being complained of.
ACAS will then contact the prospective Claimant and the employer to offer their conciliation services. If conciliation is accepted by both parties, ACAS have a period of one month (extendable by 2 weeks) to try and settle the claim.
If conciliation is refused by either or both parties, or conciliation fails, ACAS will issue a certificate to the prospective Claimant to allow them to submit a claim form to the Employment Tribunal.
When a prospective Claimant submits the Early Conciliation form to ACAS this has the effect of ‘stopping the clock’ on the time period for them to submit their claim. The time will only begin again when the certificate is issued by ACAS. This principally means that the time limit for most claims will be 3 months plus the time taken for ACAS to attempt to conciliate.
Whilst the requirement for a prospective Claimant to contact ACAS before bringing a claim in the Employment Tribunal is mandatory; the decision whether to accept the offer to conciliate is entirely voluntary.
It is most likely that in practice, the employer will be contacted by ACAS only once the prospective Claimant has agreed to conciliate. If a prospective Claimant does not wish to pursue conciliation, they will proceed to lodge their claim in the Employment Tribunal. However, an employer is not obliged to take part in conciliation just because the prospective Claimant wishes too, they too can decline.
Once a prospective Claimant has submitted their claim to the Employment Tribunal, post-claim conciliation through ACAS will still be available as a potential resolution mechanism for employers. There will be no change to the current system.
At present, it is most likely that the first time you know of a claim against you is when the claim form lands on your desk. The Government hopes that the introduction of Early Conciliation will open the doors for employers and prospective Claimants to resolve matters without the need for Employment Tribunal proceedings.
The reality is that, as Early Conciliation is not mandatory, its effect is likely to be limited in terms of an early settlement. Our view is that this is not likely to reduce the number of claims submitted to the Employment Tribunal.
It is also worth remembering that since last summer, prospective Claimants must pay an issue fee to submit a Tribunal claim. This has seen a reduction in claims. Some employers in certain cases may ‘hold off’ from entering into negotiations and see if the prospective Claimant is committed enough to pay the Tribunal fee and “put their money where their mouth is”.
Where you suspect that a prospective Claimant will be willing to see a claim through, Early Conciliation may offer an opportunity to save you money, as a prospective Claimant may be more willing to settle to avoid incurring the costs of submitting their claim to the Employment Tribunal.
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