Tag Archive: early conciliation

Early conciliation: what does it mean for employers?

Gurpreet Duhra, partner in our Sheffield office comments: Early conciliation (EC) has been available to claimants since 6 April 2014 but will be mandatory in respect of claims presented on or after 6 May 2014. Whilst employers could be forgiven for assuming that EC will have limited impact, particularly given the significant decline in claims since the introduction of fees, it is important that managers are prepared for the initial call from Acas to avoid prejudicing the employer’s position in any subsequent negotiations or litigation.

The mandatory EC procedure involves four steps:

Step 1: A prospective claimant who wants to institute relevant proceedings must provide prescribed information to Acas either by completing the EC form online or by telephoning Acas.

Step 2: An early conciliation support officer (ECSO) will make initial contact with the prospective claimant. The ECSO will explain the EC process, take some details from the prospective claimant and check that they wish to proceed with conciliation. As long as they do, the prospective claimant’s information will be sent to a Concilation Officer (CO).

Step 3: The CO will then contact the prospective respondent and enquire whether the prospective respondent is willing to participate in EC. If so, the CO must try to promote a settlement between the parties within the EC period of one calendar month from the date on which the prospective claimant made initial contact with Acas. The EC period may be extended once, by up to 14 days, if the CO believes settlement may be imminent.

An EC certificate must be issued where:

  • It is not possible to contact the parties;
  • The parties do not wish to participate in EC;
  • Settlement is not achieved within the prescribed period; or
  • The CO considers that settlement is not possible.  

The EC certificate will give the prospective claimant a unique reference number which they will have to include on their ET1 should they go on to present a claim. Without that reference number, the tribunal will reject the claim (except in the minority of cases where EC is not required).

What is the impact on employers?

There is no requirement on either party to engage with conciliation. If either the claimant or the respondent does not want to enter into discussions, the CO will simply issue the EC certificate. In many cases employers may consider that there is little incentive to enter into settlement negotiations until the employee has paid a fee to institute tribunal proceedings. However, there are potential benefits of settling a claim early, particularly where the claimant is unrepresented.

Employers should bear in mind the following considerations:

Do managers need training? A line manager may be the first contact that Acas makes with the employer. It is vital that anyone within the organisation who is contacted by Acas about an employment dispute understands the importance of dealing with the initial contact properly. The informal approach from Acas should be treated as seriously as employers would take a formal legal communication regarding a potential claim. Ensure that any managers who may be the initial recipient of the Acas call are aware of their responsibilities.  The initial recipient of the call should also be reminded to keep the issue confidential and not to discuss the details of the dispute with anyone else;

Give managers clear guidance on who will deal with EC. It is important that the individual who receives first contact from Acas about EC passes the details of the dispute on to whoever has responsibility for managing any subsequent tribunal claim. Individuals without appropriate authority and training should not attempt to resolve the issue themselves. Acas is allowing some larger organisations to register a national contact for the purposes of EC. For more information contact ECcontactsList@acas.org.uk;

Do not discount the option of settlement without first considering the merits. An unreasonable rejection of the possibility of settlement discussions could potentially lead to cost implications in the future. Relevant factors when assessing the merits of conciliation include: the likely strength and value of the claim; the potential legal costs and management time of defending a claim; the ease with which the issue could be resolved informally; and any damage to the organisation’s reputation that could result from lengthy and public tribunal proceedings;

Obtain as much information on the allegations from Acas as possible to make an informed assessment of whether the claim has any merits. Early investigation of the background to the allegations will also assist the organisation to respond comprehensively and accurately if the claimant does put in an ET1; 

Do not feel that you have to respond to all allegations immediately. Take time to consider your position before responding on allegations made and if necessary take legal advice on next steps including:

  • How to obtain further information on the allegations to allow you to determine the merits of any potential case;
  • The timing of any settlement and whether settlement is appropriate before a claim has been issued. As a result of the new fee regime, claimants are likely to want to explore settlement before issuing a claim whereas respondents are more likely to favour a ‘wait and see’ approach in order to see if a claimant is serious enough about their case to ‘put their money where their mouth is’. However, early settlements can be cheaper for employers and positions may become more entrenched once the fee has been paid;
  • The terms and nature of any settlement package offered.

Mark any internal correspondence regarding potential settlement as “without prejudice” to try and avoid it being disclosable in any future tribunal proceedings. Anything communicated to an Acas officer in connection with the performance of their functions is not admissible in evidence in tribunal proceedings unless the person who communicated it to the officer gives their consent.

Ensure that no one in the organisation reacts to contact from Acas by taking negative action against the worker(s) or employee(s) concerned eg refusing to give a reference. Depending on the type of allegations raised, this could lead to further claims (e.g. victimisation or whistleblowing).

Calculate the time limit: the EC regime includes a complicated process for recalculating the time limit for presenting the claim. The time limit is extended by the period between ‘Day A’ when the claimant contacts Acas, and ‘Day B’ when the EC certificate is deemed to have been issued, but may be extended further if this results in there being less than a month between Day B and the time limit expiring. There is significant potential for error and if the claimant fails to present the claim in time, the employer may be able to challenge its acceptance by the tribunal.

Ultimately in many cases employers may consider that there is little value in engaging in early conciliation. However, following the guidelines outlined above may prevent that decision from backfiring and creating increased legal risk for the employer.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/early-conciliation-what-does-it-mean-for-employers/

Upcoming changes to employment law

Ben Gorner, a partner in our Birmingham office, comments: In recent weeks the Government has announced a number of key changes to employment law which will be coming into force in the next few months.

Rates and limits

Changes to tribunal compensation limits, which historically took effect in February, have been moved to April. On 6 April 2014 the maximum compensatory award for unfair dismissal will rise from £74,200 to £76,574. The maximum amount of a week’s pay, used to calculate redundancy payments or various awards including the basic or additional award of compensation for unfair dismissal, also rises from £450 to £464. The new rates will apply to any dismissals where the effective date of termination is on or after 6 April 2014. Different rates apply in Northern Ireland. Other changes to statutory rates and limits will also come into force on 6 April, including changes to statutory maternity pay and statutory sick pay. For full details of the new limits click here to access the rates and limits section.

Early conciliation in tribunal proceedings

On 18 February the government confirmed that the new ACAS early conciliation (EC) scheme will be available to claimants from 6 April 2014 and mandatory for tribunal claims presented on or after 6 May 2014.  EC comprises a four-step procedure under which a prospective claimant is required to contact ACAS before issuing relevant proceedings (which includes the majority of claims):

Step 1: The prospective claimant must send “prescribed information” in the “prescribed manner” to ACAS. This information is limited to the name and address of the prospective claimant and respondent.

Step 2: After an early conciliation support officer has made initial contact with the prospective claimant and confirmed that they wish to proceed, the claimant’s information is sent to a conciliation officer.

Step 3: The conciliation officer must try to promote a settlement within a “prescribed period”.

Step 4: If a settlement is not reached, either because the conciliation officer considers that settlement is not possible, or because the prescribed period expires, the conciliation officer must issue a certificate to that effect. The prospective claimant will be unable to pursue most tribunal claims without this certificate.

There is no requirement on either party to actually engage in conciliation. The immediate impact for employers will be delay in employees bringing claims. The EC scheme provides for the usual three month limitation period to bring a tribunal claim to be extended to take account of the conciliation period.

Flexible working

Finally, the right to request flexible working will be extended to all employees, not just carers and parents, with effect from 30 June 2014. The right to request flexible working will apply to all employees with 26 weeks’ qualifying service with the employer. The statutory request procedure will be repealed and replaced with a duty on employers to deal with requests in a reasonable manner and within a reasonable period of time. Although the final legislation has not yet been published, it seems likely that:

  • The employee will continue to have to include prescribed information in their application
  • The statutory grounds for refusal will continue to apply
  • There will be a time limit of three months for the employer to make a decision on the employee’s request but this period may be extended by mutual agreement
  • Employers will be able to treat an application as withdrawn if the employee fails to turn up to two application/appeal meetings without good reason and the employer notifies the employee that it has decided to treat the employee’s conduct as a withdrawal of the application
  • The limit of one request per 12 months will continue to apply
  • Employees will be able to bring a complaint in the employment tribunal if the employee considers that:
    • the employer has not dealt with their application in a reasonable manner or they have not been notified of the employer’s decision within the 3 month time period (or such mutually agreed extended period);
    • the employer’s decision to reject their application was based on incorrect facts; or
    • the employer’s notification to the employee that they considered their application to be withdrawn did not meet the statutory requirements
    • An employment tribunal complaint cannot be made until the employer has notified the employee of its decision or the 3 month period (or such extended period as has been mutually agreed) comes to an end without the employer notifying the employee of its decision. A complaint in relation to deemed withdrawal may be made as soon as the notification of deemed withdrawal is given to the employee.

ACAS has published a guide to handling requests to work flexibly in a reasonable manner.

Employers are likely to need a new flexible working policy to reflect the change in eligibility and procedure.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/upcoming-changes-to-employment-law/