Any employee or ex-employee contemplating an Employment Tribunal claim, must go through the ACAS Early Conciliation (EC) process, as a pre-condition before a claim can be filed. If the process concludes without resolution, a certificate is issued, without which a claim cannot be filed.
Up to now one month is allowed from when ACAS receive the on-line EC form from the prospective Claimant, for the conciliation to take place, with a possible extension of two weeks permitted.
ACAS are very busy, and it is often two or three weeks into this timetable before the referral is actioned at all and the employer receives the first, unwelcome, telephone call. This has hampered the prospects of potential settlement in many cases because time is so tight. The extension process can be convoluted, and the opportunity can be missed if the clock has run down too much before first notification.
This is now set to change. From 1 December 2020 all EC matters will automatically be allocated 6 weeks. This should allow a swamped ACAS more time to process matters and will afford the parties more time to explore resolution if they so wish.
The overall aim of the Early Conciliation process is to promote early resolution of potential claims, and of course, this helps to save Government money by keeping claims out of the Tribunal and reduces the number of claims clogging up the Tribunal system. It is effective in weeding out unmeritorious claims and can give a prospective Respondent employer a useful insight into what may lie ahead.
Early resolution can sometimes be a good idea for the Employer, if the terms are right, with the advantage of shutting the matter down early and sparing costs and time and potential distraction and poor publicity.
There is no obligation for either party to engage in the process. All that is required is for the prospective Claimant to commence it. There is no obligation for an employer to settle.
As a minimum, the call from ACAS is an early warning of possible trouble ahead. It can be used to find out more about the prospective claim. It can also be used to indicate early the disdain with which the merits of a potential claim are viewed and /or to signpost a robust defence to any action commenced as a deterrent.
It’s often worth seeking legal opinion to provide impartial advice on the potential merits and to assist with negotiations, with what can often be emotive issues. If no deal is offered the potential claimant may just give up at that point, and often they do. If not, a Notice of Claim from the Tribunal will follow.
The EC process must usually be commenced within 3 months of the act complained of (for example a dismissal). There are complex provisions which stop the normal limitation clock for filing a claim in the Tribunal, when the EC process is underway. One practical effect for employers of the extended EC window is that the unwelcome notification from ACAS could now arrive even later after the dismissal or other dispute.
Combine the extension of the ACAS EC period with the extended time limit for filing that follows once the limitation clock restarts, and the long delays currently evident in the Tribunal office in processing a claim when lodged, and there is now potential for well over six or seven months from the event leading to the claim (eg a dismissal), to an employer finally knowing whether it has to defend a Tribunal claim or not. It makes the golden days of the past, when there were just three strict months from the dismissal until the door finally shut on a possible claim, seem very short and certain.