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Acas Early Conciliation

The new Acas Early Conciliation (“EC”) process went live yesterday. The EC website can be accessed here and the EC notification form, for starting the process, can be accessed here.

Acas conciliators have long been appointed following the commencement of employment tribunal proceedings in order to promote a settlement, and for some time a pre-conciliation procedure had been available to employers and employees (or former employers / employees, as will often be the case) in order to assist in trying to resolve disputes prior to the commencement of proceedings.

EC replaces pre-conciliation and, in most instances, notifying Acas under the EC procedure will be mandatory before employment tribunal proceedings are commenced from 6 May (not 6 April, as the opening page of the EC website states in error at the moment).

The procedure can be broken down into the following steps:

Step 1: A prospective claimant must provide his/her name and contact details, and those of the prospective respondent(s), to Acas either on an EC form (which may be submitted on-line or by post) or by telephone. Where there is more than one prospective respondent and forms are being used, a separate one is required for each prospective respondent.

Step 2: An early conciliation support officer (“ECSO”) will attempt to make contact with the prospective claimant. If contact is made, the ECSO will explain the EC process, take some details and check there is actually a wish to proceed with conciliation. The prospective claimant may instruct a solicitor or other representative to deal with EC on their behalf, in which case they  should notify Acas. If there is a wish to conciliate, the prospective claimant's information (including their representative's details, if applicable) will be sent to a Conciliation Officer (“CO).

Step 3: The CO will contact the prospective claimant (or their representative, if appointed). In addition to discussing their complaint, the CO will check that the prospective claimant agrees to the CO contacting the prospective respondent(s). As long as the CO is able to contact a prospective respondent and it is willing to participate in EC, the CO must try to promote a settlement within the prescribed period - which is initially up to a month from when the prospective claimant first contacted Acas, and may be extended by up to 14 days. Prospective respondents may instruct a solicitor or other representative to deal with EC on their behalf.

An EC certificate must be issued if:

  • it is not possible to contact a party;
  • a party does not wish to conciliate; or
  • a settlement is not reached, either because the CO considers that settlement is not possible, or because the prescribed period expires.

The certificate will give the prospective claimant a unique reference number which they will have to include on their Claimant’s Form (ET1) should they go on to present a claim.

Prospective claimants and respondents are encouraged to consider carefully how they deal with any dispute, including if and when to use EC in the first place and, in any event, how they frame their respective cases and formulate any offers and counter offers in respect of settlement. This can be key to:

  • maximising the value of a settlement or tribunal award if you are an employee, or minimising the value of a settlement or award, or indeed avoiding paying anything out at all, if you are an employer; and
  • ensuring that the settlement terms themselves adequately protect their interests.

Parties should remember that Acas are impartial, and that for actual advice they need to look elsewhere. In this regard, we can assist. For further information, please contact me (T: 01952 211 010; E: john.merry@lblaw.co.uk) or Will Morse (T: 01432 377152; E: will.morse@lblaw.co.uk