Did you know that ACAS Early Conciliation has now changed to allow a standard six-week early conciliation process in all cases? Previously there was a default period of one month with the possibility to extend for a further two weeks. Of course, where either side confirms they do not wish to conciliate then the process can be ended at any time during this window. However, this should be a welcome step as it removes the need for ACAS to undertake additional steps to ascertain agreement to extensions from both parties during a time when many employers may not be at full complement and ACAS themselves are battling significant backlogs.
Early Conciliation remains a requirement for prospective claimants wishing to bring claims in the Employment Tribunal (save for some very limited exceptions), but beyond the initial notification stage participation for either party is voluntary. Let’s take a quick look at the process below:
- Prospective claimant (most commonly) or prospective respondent initiates Early Conciliation process by completing the online form or contacting ACAS. From this point there will be 6 weeks to complete the process.
- Where the prospective claimant has initiated the process, ACAS will contact them first to confirm their agreement to notify the prospective respondent.
- ACAS, with that permission, will then contact the prospective respondent to confirm their willingness to conciliate.
- If an agreement is brokered, both parties will sign a COT3 agreement and the matter is concluded.
- Where either side declines to conciliate, or where agreement is not reached within the permitted time frame, an Early Conciliation Certificate will be issued.
- Prospective claimant may now present their claim to the Employment Tribunal and must provide the Early Conciliation reference when doing so.
- ACAS can provide their conciliation services throughout the Employment Tribunal process, including whilst the hearing is ongoing, until final judgement and/or judgment on remedy is handed down.
Of course, when an employer is made aware of an Early Conciliation or a claim, the real question is whether to settle or fight and to answer that you are going to need to consider the following:
- the prospects of the claim / defence (not just as a whole but each facet);
- the likely award;
- the costs involved in defending the claim (not just representation costs but also management time and resource);
- whether there’s a risk of adverse publicity / reputational damage;
- whether the outcome will encourage or deter future claims;
- whether the Claimant’s expectations are realistic.
Enlisting the expertise of a professional advisor and experienced negotiator could make the process less painful and ensure the most favourable outcome for your organisation. If you have recently been notified of a claim, or are imminently facing a hearing, we are happy to provide a free, no-obligation review of your case. Please contact us on 01942 727200 for further information.