ACAS Early Conciliation - what impact will it have on Employers?

-    Any claim lodged with the Employment Tribunal after 06 April 2014 will now automatically be subject to something called Early Conciliation.  This is a service run through ACAS, which expands the scope of the service previously provided by them.

-    Whereas before ACAS involvement was only at the request of the parties, pre-conciliation will now make their involvement mandatory at this early stage. Remembering the service is completely free of charge, we would always advise clients to try and work with ACAS when they make contact.

-    Once a Claimant issues a claim to the Employment Tribunal, their case will be sent directly to ACAS and a conciliator will be allocated to their case. This will then ‘stay’ the issue date of the Claimants claim for 1 month in which time the conciliator will seek to try and settle the case.

-    The conciliator will discuss the case with both parties individually, and whilst they are not legally qualified persons, they will have some understanding of the law and will be able to guide parties to the potential strengths and weakness of their case. This can help to narrow down the issues in dispute and potentially, if the whole claim cannot be settled, some elements of claim may.  

-    The further positive is that the Claimant may see that their case is weak, or holds little merit and thus may drop their case all together. As the Claimant will not have had to pay their issue fee at this stage, they will not lose anything from walking away from the conciliation. If the Claimant gets the feeling during conciliation that their case is weak, knowing the next stage will involve the payment of a fee may also deter them from pursuing the matter further.

-    On the other side of the coin, an un-articulate Claimant may benefit from having a third party be able to put their case across when ordinarily they wouldn’t have. This may therefore assist the Claimant more than the Respondent employer.  We are happy to discuss cases with ACAS on our client’s behalf, providing we have their prior instruction to do so.

-    If the conciliator believes that there is a reasonable chance of the claim being settled, and the parties are legally represented, the conciliator is able to extend the 1 month timescale for a further 14 days.

-    There are a few types of cases that will be exception to the early conciliation procedure, namely if the Claimant is part of a multiple claim and another person within this claim has already undertaken the pre conciliation process.

-    If the conciliation is successful, the parties will both have input into the wording of the ‘COT3’ settlement agreement. When the parties are happy with the wording the COT3 will be signed and become binding on both parties in full and final settlement of the dispute. It is key when drafting terms for the COT3 to make sure that it is a global all encompassing agreement, so that the Claimant can not then begin another claim against you regarding the same issues. Also it is beneficial to have a confidentially clause, so that the Claimant does not broadcast their terms of the settlement to ex colleagues, or over social media.

-    Again we can advise clients as to the exact wording to use in a COT3 to assist them in achieving the most effective settlement.

 

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Published: 04 Aug 2014

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