Mandatory ACAS Conciliation?

As from 06/05/14 Claimants must complete an ‘Early Conciliation Notification Form’ before they are allowed to bring a claim to an Employment Tribunal.

The idea is: if Claimants give ACAS conciliation a chance then a significant number of ET claims will be resolved without the Employment Tribunals having to so much as raise a finger.

As you might expect, there is a raft of practical problems associated with this, which the Enterprise and Regulatory Reform Act 2013 aims to address in several ways.

ET claims are largely subject to time barring at 3 months and so Claimants who engage with ACAS Conciliation risk prejudicing their ability to get their claims in on time if Conciliation fails. So, time limitation is put on ‘pause’ for one calendar month (plus another 14 days if things are progressing towards a settlement) and re-started if settlement efforts become orchard fruit shaped.

If negotiations prove unfruitful, ACAS will issue a ‘unique reference number’ to prove that Conciliation failed: this will act as a passkey enabling the Claimant to submit a claim form. However, a Claimant may circumvent Conciliation by blithely announcing no interest in ACAS Conciliation, in which case a code will be issued irrespective of whether or not any efforts have been made to achieve settlement.

This seems to rather negate the hopeful and useful premise we began with, but that is not all. Employers can also avoid Conciliation by simply declining to become involved.

It has been suggested that because we now have Employment Tribunal fees for Claimants, canny and cynical Employers will decline Conciliation: to test the putative Claimant’s metal and their ability to stump up first the issue fee, and then the hearing fee. In other words: the introduction of Fees has made it beneficial for Employers to decline ACAS Conciliation and leave settlement until later in proceedings.

So, Conciliation is not mandatory and there are very good reasons for Employers not to engage with it at all! However: enough nit picking!

Traditionally ACAS Conciliation, at all stages, has proved most effective at reducing the system’s caseload and bringing warring parties to a reluctant truce (if not peace and harmony).

We think that forcing the parties to at least face up to the availability of Conciliation before proceedings are issued (and positions have become entrenched) will prove effective and save a great deal of time and cost for Claimants and Employers alike.

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