Early conciliation – early conclusion? ACAS early conciliation rules amended

With recent reports suggesting the backlog of Employment Tribunal claims has now reached 45,000, and when all the talk is of Covid tiers and vaccinations, employers should not be forgetting the importance of Conciliation.

Employers who have had the misfortune of having faced an Employment Tribunal claim will be aware that before lodging a claim, any potential Claimant is required to attempt to resolve their workplace dispute by using the ACAS Early Conciliation process. ACAS, which manages this conciliation process, is the independent and impartial organisation whose purpose is to help both parties to an employment dispute reach a settlement.

On 1 December 2020, the rules of procedure for ACAS Early Conciliation (EC) were amended:

• The period allowed for early conciliation (EC period) increased from four weeks to six weeks with no possibility for an extension. Prior to that date, the EC period lasted four weeks with an option to extend this period by a further 14 days.
• ACAS conciliators now have greater discretion to correct errors in the EC form at any time during the EC Period.

What does this mean for employers?

Historically, there have been occasions where employers were not notified of the early conciliation process until the third or even fourth week of the EC period, meaning they had limited time to consider their position before the claim form (ET1) was lodged. The new six week period should hopefully allow the parties more time to resolve the dispute pre-litigation and avoid a Tribunal claim altogether, potentially saving time, costs and the stress of litigation.

The change is largely to be welcomed on the basis that it simplifies the time scales for the EC period and allows for a more consistent approach.

Hopefully it will allow for a little more time to encourage parties to engage in early settlement and therefore ease the burden on the Employment Tribunals, which is needed now more than ever with Tribunals across the country suffering significantly with a back-log of claims as a result of the impact of Covid-19.

There are a number of key practical steps that employers can take in order to get the most out of the six-week early conciliation period, including:

• Note when the clock started and when it expires;
• Use ACAS to obtain as much information from the Claimant as possible, particularly concerning the exact claims and the dates of the allegations, so an early assessment of the merits and value of the claim can be undertaken;
• Consider commercial factors – what could it cost the business if we lose at Tribunal? What are the legal fees and management time for such a claim? What is the potential reputational damage?
• Know your negotiation parameters and stick with them – if it is your final offer, say so;
• Make it clear any settlement discussions are without prejudice to avoid anything being used against the business in the event the dispute ends up in the Tribunal; and
• Explain your position briefly without admitting fault, make an offer if appropriate and say nothing more!

The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (SI 2020/1003)