Changes to ACAS Early Conciliation

Wednesday 9 December 2020

ACAS Early Conciliation (EC) is an alternative dispute resolution service whereby employers and employees can resolve workplace disputes without the need to go to the Employment Tribunal (ET).

All prospective ET claimants must obtain an EC Certificate, before escalating the dispute to the ET (albeit that – some would say perversely – a prospective claimant is perfectly entitled in the first conversation with the conciliator to request the certificate be issued to end the process immediately without any material conciliation!). Any claim issued without a valid EC certificate number will be rejected by the ET.

On 1 December 2020, the Rules of Procedure for ACAS EC changed. The new rules extend the EC period to six weeks. Prior to this change, the period of EC usually lasted four weeks although, if agreed between the parties, this could be extended by a further 14 days. Now there will be no opportunity to extend beyond the six-week period.

It is hoped that the extension of the conciliation period will result in an increased number of cases being resolved without the need to issuing a claim in the ET. If this is the case, it will help to ease the significant backlog of claims which the ET is currently experiencing (which is resulting in claims are not being heard in good time).

Whilst this change is likely to have little impact on the conduct of most claims, it will give both employers and employees additional time to attempt to resolve the dispute and this may help to reduce the need for further litigation.

However, this change may have an unintended consequence that will disadvantage employees. As referenced above, if a party (usually the employer) confirms that it does not wish to conciliate then the EC certificate is automatically issued, meaning that the EC period could be as little as one day. In this situation the employee can now issue their claim.

However, an unscrupulous employer who has no intention of conciliating, could wait until the last day of conciliation to respond to ACAS, thereby delaying the process and meaning the employee has to wait longer to have their claim heard (and potentially receive an award of compensation).

Another minor but welcome change is that conciliators are now able to correct any errors there may be on the original form completed by the prospective ET claimant to initiate EC. Prior to this, claim forms have been rejected by the ET as a result of differences in the names or addresses of parties on the ET1 Claim Form and the information set out on the EC certificate.

If you have any questions about Early Conciliation, please email or call our Employment Law team today on 0113 207 0000.