Extension of the Acas Early Conciliation Process

It has been a rum old year to say the least and one which saw even the most stalwart of British institutions grind to a halt.   Yes, the Covid Pandemic drove a pretty large spoke into the wheels of justice as Employment Tribunals all over the country cancelled hearings, closed their doors and battened down their hatches.  But not for long…. over the last month alone, the Employment Tribunals completed over 2,000 hours’ worth of remote hearings past few months, just one of the measures introduced by a system that is adapting to meet the unique challenges that the country is currently facing.  

Then there is the Advisory, Conciliation and Arbitration Service (Acas), the free advisory service funded by the government, which has seen a record increase in demand for its services from employers and employees alike as the pandemic has created widespread disruption to workplaces.  As a result, Acas’s early conciliation process has been experiencing backlogs with many employers reporting that they are not being contacted until the last week of the 4-week Acas conciliation period.   It is with very good timing, therefore, that December 2020 has heralded in new rules on Acas Early Conciliation, increasing the standard period for the early conciliation process from 4 weeks to 6 weeks to hopefully allow parties more time to try and resolve their disputes. 

So, what better opportunity than to recap over what early conciliation is all about for those in need of some non-festive reading material!    

What is Acas Early Conciliation?

Early conciliation is a process that is intended to help parties resolve employment disputes without the need to go to the Employment Tribunal.   When the process is commenced, an Acas conciliator will be appointed to the case whose purpose will be to act as a “go between” to try and facilitate an agreement between the parties. 

Do all employment disputes have to go through Early Conciliation?

For most employment claims it is mandatory to go through Acas Early Conciliation first.   This includes claims of unfair dismissal, discrimination, whistleblowing and claims for redundancy pay. The process is normally started by the individual who intends to pursue a claim in the Employment Tribunal (referred to as the “employee” for the remainder of this article although, of course, claims can be brought by workers and other categories of individuals).  The employee will contact Acas by phone or online and will complete an Early Conciliation Form. 

Is there a time limit for commencing Early Conciliation?

Yes.  The employee must start the Early Conciliation process within the normal time limit for the claim they want to pursue.  So, for example, for a claim of unfair dismissal, the normal time limit for pursuing a claim is three months, less one day, from the date of dismissal.   If the employee does not commence the Early Conciliation process within this time limit, it is highly likely that they will be out of time to pursue their claim.   

What is the process?

When the Early Conciliation process is commenced, an Acas conciliator will be appointed to the case whose purpose will be to act as a “go between” to try and facilitate an agreement between the parties.   The Acas conciliator will contact the employee first and ask them if they are willing for Acas to get in touch with the employer.    If they say no, the process ends, and Acas will issue an Early Conciliation Certificate which will have a unique reference number on it.  The employee will need to cite this reference number when filling in the Employment Tribunal Claim Form because this proves that they have gone through the mandatory Early Conciliation process.   If they say yes, then the Acas conciliator will endeavour to contact the employer and invite the employer to participate in settlement discussions.   

How long does it take?

The standard period used to be 4 weeks with an option to extend for a further 2 weeks if both parties agreed.   This has now changed so that the standard period is 6 weeks.   The purpose of this change is two-fold: to simplify the process and to allow parties more time to reach agreement.  

Do we have to engage in Early Conciliation?

No, employers do not have to engage if they do not want to.  If you refuse, the Acas conciliator will simply inform the employee and issue the Early Conciliation Certificate.  However, there are benefits to participating in Early Conciliation.   It is free, it is impartial, and it can save you a lot of time, stress and money if you manage to resolve the dispute without it going to the Tribunal.  If a compromise is reached, Acas will prepare an agreement setting out the terms of settlement which is called a COT3.   Unlike a settlement agreement, there is no need for the employee to seek legal advice on the terms (although they may well already have involved solicitors) and no need for you, the employer, to pay a contribution towards their legal costs. 

Will the Acas conciliator advise on the strength of the claim or defence?

No.  Acas provides and impartial service.  Its conciliators are intended to act as neutral “liaison” between the parties.   There is no “side-taking”. 

Can anything said to the Acas conciliator be used against us in any future legal proceedings?

Generally speaking, anything you say to the Acas conciliator during the course of the conciliation process is not admissible in evidence in tribunal proceedings unless you give the Acas conciliator your consent to share this information with the other side in the dispute.   However, this is not a hard and fast rule and there are exceptions to this.   You therefore need to exercise care during these discussions.  

What happens if Early Conciliation does not work?

At the end of the – now – 6 week period, Acas will issue the employee with the Early Conciliation certificate.  The employee will then have a limited period in which to lodge their claim in the Employment Tribunal.    The effect of engaging in the Early Conciliation process is that it “stops the clock” in respect of the time limit for bringing a claim.  That “clock” – and the limitation period – starts again once the Early Conciliation Certificate is issued and employees are advised to seek legal advice on exactly how much time they have left in which to submit their claim.   

The Acas conciliator does not step out of the picture if Early Conciliation is unsuccessful – they will continue to be allocated to the case and can be called upon to help broker a settlement between the parties right up to the day before the final hearing.