ACAS early conciliation
In this edition of Joelson’s Employment Tribunal Tactics and Tips series, we consider the process of ACAS early conciliation and key points that employers should be aware of.
Before a prospective claimant (usually an employee) can bring a claim in the employment tribunal, the individual must first contact ACAS in relation to early conciliation. This involves providing their own details together with those of the prospective respondent, which is usually the employer (a separate notification form must be submitted by the employee in respect of each prospective respondent). The purpose of the conciliation process is for ACAS to liaise with both the employee and the employer to see if the potential claim can be settled so that the matter does not progress to the employment tribunal.
The existence of this process may, in certain situations, give an employer a false sense of security as they may assume that if ACAS has not contacted them in relation to early conciliation, that the employee has no intention of submitting a claim at the employment tribunal. This will not necessarily always be the case.
Once the employee has submitted the early conciliation notification form to ACAS, they can tell ACAS that they do not wish to engage in early conciliation with the employer. This means that ACAS will simply issue the early conciliation certificate to the employee and will not contact the employer at all. So the only obligation on the employee is to lodge the matter with ACAS and say whether it wants ACAS to try and resolve the matter. This means that if the employee tell ACAS that it does not wish to engage in early conciliation then the first time the employer may hear about the claim is when it receives the ET1 claim form from the employment tribunal.
Lodging the matter with ACAS also has the effect of extending the time which the employee has to lodge their claim with the tribunal. This is because lodging with ACAS stops the clock from running in respect of the time limit on the employment tribunal claim. Usually employees have three months to bring their claim from the date of termination or, if the claim is for discrimination, the last act of discrimination. Early conciliation can stop the clock and can give the employee up to a further month to submit their claim – in some cases giving the employee up to four months to bring an employment tribunal claim. Again, this extension can sometimes lull an unsuspecting employer into thinking that the employee will not be bringing a claim as three months from the date of dismissal has passed.
Employers should also be aware that although the early conciliation period is normally limited to one month and if the parties have not settled the claim within that period the certificate will be issued, ACAS does have the power to extend this one-month period by a further two weeks where they believe the parties are close to resolving the matter.
Where an employer is concerned about a prospective claim being brought and it has not heard from ACAS or the employee, the employer can try and contact ACAS to ascertain if they have any records on their file of notification of any claim against them.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
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