ACAS Early Conciliation

A new free Early Conciliation service from ACAS will be available from 6 April 2014, which will provide a fast and less stressful alternative to an employment tribunal for resolving workplace disputes.

Claimants will only be able to lodge a claim with the Employment Tribunal if they have first referred a complaint to ACAS for early conciliation (subject to certain minor exceptions). Although early conciliation will be available from 6 April 2014, it will only be compulsory for claims (“relevant proceedings” under the rules) lodged on or after 6 May 2014. Typical claims covered would include (but not limited to) unfair dismissal, redundancy, working time claims and all kinds of discrimination claims.

The final version of the rules that govern the early conciliation scheme have been published and the key points are:

  • Complaints to ACAS can be presented online, by post or over the telephone.
  • The potential claimant simply has to tell ACAS their name and address and that of the potential respondent. They do not have to provide any details of the nature of the complaint/dispute being made when presenting the complaint.
  • ACAS will then make “reasonable attempts” to contact the potential claimant and, if the potential claimant consents, the potential respondent. If ACAS cannot make contact with one of the parties it must conclude that settlement is not possible.
  • If both parties agree to take part, there is a period of up to one month from the date the claimant first contacted ACAS for early conciliation to take place. The role of ACAS conciliation officer is to “endeavor to promote a settlement”.  The period can be extended by 14 days, with the agreement of both parties, if there is a reasonable prospect of achieving a settlement.
  • If the conciliation officer concludes at any point during the early conciliation period that it is not possible to achieve a settlement, ACAS must issue a conciliation certificate to the potential claimant and to the potential respondent (if ACAS has had contact with the prospective respondent during the early conciliation period).

Once the conciliation certificate has been issued, the claimant will be able to lodge a claim with the Employment Tribunal. The number on the conciliation certificate would need to be quoted on the claim form otherwise the claim would be rejected. There are limited exceptions to this rule. For example, where there are multiple claims, another party may have approached ACAS.

Time limits for making a claim will actually be extended in two ways:

  1. The conciliation period “stops the clock” on the limitation period for bringing a claim.
  2. If the time limit to bring a claim would have otherwise expired during the conciliation period, the claimant will have a further month after it ends to lodge a claim.

The practical implication of this is that the usual time limits to bring a claim (typically 3 months less one day from the date of the particular complaint) would be considerably extended.

In situation 1, it could be extended by up to 1 month and two weeks (taking into account any agreed extension to the one month conciliation period of up to 14 days).

In situation 2, it could be extended by up to 2 months and 14 days (as you would have a one month conciliation period,  a possible extension of up to 14 days and the further month at the end of conciliation period to lodge a claim).

Surprisingly, the final rules do not make specific provision for what would happen in the event settlement is reached. The draft rules had provided that where the parties do reach a settlement (or only settle part of the complaints/disputes), this would usually be recorded in a COT3 agreement (as is currently the case) but a conciliation certificate would still be issued. The logic of this would appear to have been twofold:

  1. If only some of the matters in dispute are settled, the potential claimant would still need a conciliation certificate to bring a claim for the complaints/disputes that have not been settled.
  2. Where the settlement “fails” (it could be assumed this means the settlement is not concluded), the potential claimant will be able to demonstrate that they had complied with their obligation to contact ACAS.

It would therefore appear the final rules expect the conciliation officer to take a view on a case by case basis whether it is necessary to issue a conciliation certificate. For example, if a claim for outstanding wages is settled but not the fairness of any dismissal is not, the claimant would still need the reference number from their conciliation certificate to bring a claim for alleged unfair dismissal.

Reference sources: Practical Law Company and Lexology