In its first month of operation, whilst Early Conciliation (EC) was still optional rather than obligatory, ACAS is understood to have received 4,000 applications for EC. All but 2 per cent were apparently willing to explore a settlement. From today, EC is compulsory in the majority of cases, meaning the volume of applications is likely to increase.
From today, almost all prospective claimants will have to contact ACAS to provide their name and address and that of the prospective respondent in order to receive an EC certificate before they are able to bring a complaint to an Employment Tribunal (ET). But that does not mean they are obliged to engage in conciliation! Once this information is provided, the prospective claimant can refuse any attempt to conciliate. They will still be issued with the EC certificate which will enable them to pursue their claim in the ET, subject of course to any fee which is payable.
Similarly, a respondent is under no obligation to respond to any attempt by a claimant to conciliate. However, it will be in respondents interests to do so, not least because, if the respondent does not engage in the EC process, it will not then receive the EC certificate from ACAS when the conciliation attempts come to an end. The advantage of receiving the EC certificate is that it will enable respondents, or their representatives, to calculate any extended time limit in which the claimant must bring their complaint to the ET.
Broadly, the EC process “stops the clock”, in respect of ET time limits for presenting a claim, from the day after the claimant contacts ACAS until the day on which he or she receives the EC certificate. There is also the possibility of a further extension of up to one calendar month as, once EC has ended, the claimant will have at least one month in which to bring their complaint, provided they contacted ACAS within the original time limit for bringing their ET claim.
Other advantages of engaging in the EC process for employers
Risk exposure: EC will enable a prospective respondent to know as much as possible about the prospective claim. A prospective respondent or representative should take the opportunity to ask as many questions as possible, including what the prospective claimants are now doing, and what attempts they have made to mitigate their loss. It may also be possible to find out if there are other prospective claimants who might ‘jump on the band wagon’.
Information gathering: there is nothing to prevent an prospective respondent, possibly with little intention of settling, using the process to obtain more information about the other side and its case than would have been possible at an early stage under the old regime.
Avoiding fees: if EC fails, and employees go on to win their case at ET, the employer is likely to be ordered to pay the fees for issuing and hearing the claim.
Opportunity to settle on more favourable terms: the claimant may be willing to accept a lower offer prior to issuing a claim, in order to avoid paying a tribunal fee, than they would be post-issue.
A practical point
ACAS will initially contact the respondent named on the EC form. This could be the CEO! Consequently all employers should consider contacting ACAS to request that all EC requests are dealt with by a named person, for example an HR manager or a representative.
There is an email address to register contacts with ACAS for EC: ECcontactslist@acas.org.uk.
We have attached a flowchart of the EC process here