For those with a good memory, we originally wrote about the Government’s proposal for the ACAS Early Conciliation scheme back in 2011 (please see our article here). Time has flown by and the scheme is now set to commence on 6 April 2014, although it will not become mandatory until 5 May 2014. So what is it and what impact is it likely to have? We explore these questions below.
The mechanics of the scheme
The scheme will mean that individuals who wish to commence a claim against an employer will firstly have to refer the matter to ACAS (the Advisory, Conciliation and Arbitration Service) to see if the dispute can be settled before it goes to an Employment Tribunal.
ACAS are an independent, impartial organisation who liaise with both parties in an employment dispute to see if the matter can be settled. Currently, ACAS are informed when a claim is lodged with an Employment Tribunal and attempt settlement from there. However, the scheme will mean that ACAS become involved before any claim is lodged.
The process can be broken down into the following steps:
Step 1: A prospective claimant who wants to start a claim must provide information to ACAS. This may be done using an Early Conciliation form or by telephoning ACAS.
Step 2: An early conciliation support officer (ECSO) will make initial contact with the prospective claimant to discuss the matter. If the prospective claimant wishes to proceed, the matter will be passed to a Conciliation Officer (CO).
Step 3: The CO will contact both parties to understand the complaint, and also to see if the employer is also willing to engage in the process. Assuming everyone is happy to proceed, the CO will try to promote a settlement between the parties. This must happen within one calendar month from the date on which the prospective claimant made initial contact with ACAS (called the “prescribed period”). This may be extended once, by up to 14 days.
If it is not possible to contact the parties or if they do not wish to participate in the scheme, a certificate (called an “EC Certificate”) will be issued to the parties. If a settlement is not reached, either because the CO considers that settlement is not possible, or because the prescribed period expires, an EC certificate will be issued. The EC certificate will give the prospective claimant a unique reference number which they will have to include on their claim form should they go on to present a claim to the Employment Tribunals.
In regard to time limits for bringing claims in the Employment Tribunals, these will be extended to take account of the period for Early Conciliation.
During the transition period (between 6 April 2014 to 5 May 2014), it will be up to a prospective claimant to decide whether they wish to use the scheme.
The likely impacts of the scheme
The vast majority of claims in the Employment Tribunals usually end with settlement anyway. The benefit of the scheme is that settlement could be achieved earlier, before parties incur costs and fees.
However, there are some concerns about the scheme. ACAS are already stretched in terms of resources and a period of one month is not long to try and settle a claim, particularly where the case is complex. For employers, it can often be difficult to establish what exactly a prospective claimant is claiming until the claim form has been lodged. Where details about a prospective claim are vague, it will be difficult for employers to assess the legal merits of the claim and whether settlement should be attempted at such an early stage.
The scheme is no doubt going to cause plenty of confusion about time limits for claims and there are likely to be more disputes about whether a claim has been brought in time. Employers will perhaps not welcome the fact that prospective claimants may have longer to lodge a claim.
Finally, the Employment Tribunals are only just getting used to the impact of fees on their procedures, so adding further complexity into the system is only going to cause more chaos for the next few months.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).