Regulations setting out the final details of the ACAS early conciliation scheme have now been published, in time for it to take effect as planned from 6 April.
The scheme in outline
The scheme will prevent potential claimants from bringing proceedings without making formal contact with ACAS. This rule will apply to the vast majority of claims currently handled by the employment tribunals, though there are some exceptions.
Potential claimants will need to provide their name and address and that of at least one potential respondent to ACAS either by phone or by submitting a form by post or online. That will trigger a conciliation period during which ACAS will have a duty to promote a settlement. If a settlement is not achieved within that period ACAS must issue a certificate bearing a unique reference number which the claimant will need to supply when commencing proceedings.
In order to allow sufficient time for early conciliation to take place, the normal time limits for bringing proceedings will be extended.
When does the scheme come into effect?
Although the scheme launches on 6 April 2014, it will not be compulsory for proceedings lodged between 6 April and 5 May.
From 6 May onwards claim forms will be rejected unless the claimant can show he or she has complied with the early conciliation requirements.
What proceedings are covered?
The scheme covers all proceedings in which ACAS currently has a duty to promote a settlement. These are defined as “relevant proceedings”. These comprise all the claims commonly lodged in the employment tribunal by individuals including unfair dismissal, redundancy, working time claims, unlawful deductions from wages, equal pay and all kinds of discrimination claims.
There are a limited number of exemptions. These include disputes where ACAS has already been contacted by the respondent, or by another claimant in a multiple claim, even if relevant proceedings are involved.
What will ACAS do to promote a settlement?
The regulations say that ACAS must make “reasonable efforts” to contact the prospective claimant. If the claimant consents, it must then make reasonable efforts to contact the respondent. What is reasonable will be up to ACAS to decide. If no contact is possible with either claimant or respondent, then that will be the end of the matter. Otherwise an ACAS conciliation officer will have a fixed period of a calendar month to promote a settlement. This can be extended by up to 14 days if both parties agree.
The early conciliation certificate
If at any point during the conciliation period the conciliation officer concludes that a settlement of the dispute is not possible, he or she must issue an early conciliation certificate. This will include cases where contact with one or other party to the dispute is not reasonably possible.
The certificate will include a unique reference number which the claimant will need to provide when issuing proceedings. It will also include the date of the initial contact with ACAS, and specify how the certificate has been sent to the prospective claimant. This extra information will be needed to calculate the time limit for issuing proceedings.
How do the time limit extensions work?
The basic idea is that the time limit clock stops ticking during the early conciliation period. In addition, if the time limit for issuing proceedings would otherwise have run out during this period, the claimant benefits from a month’s extension of the time limit, counting from the end of that period.
The early conciliation period starts when the claimant supplies the required contact details to ACAS, and ends on the date the early conciliation certificate is received by the claimant. Depending on exactly when the time limit would otherwise have expired, and the length of the early conciliation period, in some cases these provisions will almost double the time available to the claimant to issue proceedings.
Consequences for employers
Employers are likely to notice two immediate differences when the scheme comes into effect. First, they are likely to be have more frequent contact from ACAS, and at an earlier stage in the dispute.
Secondly there is likely to be a longer time lag between the incident giving rise to a potential claim and the issue of proceedings. The extension of the time limits mean that in many cases claimants will have at least a month longer to institute proceedings, even when there has been no active conciliation via ACAS.
Only time will tell whether the introduction of the scheme will lead to a significant increase in the number of preissue settlements. This does materialise there will clearly be tangible benefits for both employers and employees.