I recently recorded some training on ACAS Early Conciliation (EC) for LexisNexis Webinars. Although EC is not the most exciting of topics, preparing the training highlighted a number of useful and less well-known points about the process, which I thought I would share.
1. Participating in conciliation isn’t obligatory
The claimant doesn’t have to participate in conciliation; the only requirement under the Rules is that they correctly notify ACAS of the potential claim and obtain an EC Certificate. If the claimant wishes, they can tell ACAS to send them the certificate immediately so they can lodge their tribunal claim. In those circumstances the ACAS officer wouldn’t even contact the employer. (See Rule 1 of the Schedule, Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014).
2. The claimant must do EC for all of the potential respondents
If the claimant’s case is against multiple respondents, for example, the company they work for and their line manager, they must do ACAS early conciliation for both, which means notifying ACAS separately for each respondent (see Rule 4).
3. EC not always necessary when joining a group claim
An individual can join a group Tribunal claim (before or after proceedings have been issued) without notifying ACAS or obtaining the EC Certificate provided someone in the group has already done it. (See Regulation 3(1)(a)).
4. ACAS should attempt settlement regardless of the strength of the case
Where the claimant wants conciliation, the conciliator has a duty to attempt settlement even if they think the claim has no chances of success, or is completely out of time, (see Rule 6). This is important because the merits of a case and all the facts relevant to calculating the time limit may not be apparent at the conciliation stage.
5. EC is available for more than 1 calendar month
If the claimant is keen to settle, they can get a 14 day extension on top of the basic period of 1 calendar month, provided both sides agree. In addition, the conciliator can continue to assist even after the 14 days are up and the certificate has been issued. (See Rule 6). However, be aware, once the certificate has been issued, time starts to run again for limitation even though the conciliator is still on the case.
The webinar we recorded also features Noel Lambert, who is Head of Individual Dispute Resolution Policy at ACAS, and barrister Heather Platt of Pump Court Chambers. It will be available here http://goo.gl/UcZfh8 from 27 May 2016.
The points in this article are made in general terms and may not apply in all circumstances. If you are unsure in a particular case, take legal advice or contact ACAS.