The new rules on early conciliation will be seen by some as another obstacle in the path of the poor put upon litigant employees and by others as a sensible way to encourage employers and employees to try to resolve disputes without resorting to litigation.
Whatever the view, early conciliation is important because it has an impact on the time limits for claims, and employers need to understand the process to take advantage of it.
The most immediate impact of early conciliation is that an employee cannot now bring most employment tribunal claims until they have a certificate number from ACAS showing that they tried to resolve his/her claim.
The early conciliation process is started by the employee telephoning ACAS or sending an online form to ACAS. Once contacted, an ACAS officer will attempt to contact both employee and employer to try to resolve the dispute (but will not give advice). The ACAS officer has one month to conciliate and the parties can agree to extend this by a further 14 days.
If conciliation is not successful, the ACAS officer will issue a certificate number to the employee who can then pursue their claim.
Time under the strict tribunal time limits for bringing claims stops running when the employee contacts ACAS to trigger conciliation and starts again when the employee receives the early conciliation certificate.
Employers need to know about this so that:
- they can be alert to the conciliation process;
- they can use it to try to find out as much as possible about the claim; and
- they can try to keep track of time limits.
But employers should remember that the tribunal fee is only paid by the employee if early conciliation fails. Some employers may therefore want to wait and see if the employee is prepared to back their claim with hard cash, rather than conciliate.