Back in 2009 I reported about the problems being encountered by ACAS in trying to deal with conciliations which had been brought in as part of the process of dealing with tribunal claims. Primarily as a result of lack of resources there were significant delays. The truth is that the scheme didn’t work and most people paid no more than lip service to it.
Undeterred by previous experiences the Government has ploughed on with its plans to reintroduce ACAS conciliation and the Enterprise and Regulatory Reform Act 2013 (Commencement No.5, Transitional Provisions and Savings) Order 2014 (SI 2014/253) brings into force, from 6 April 2014, compulsory conciliation. The Early Conciliation Rules of Procedure are set out in the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations.
So, from 6 April all potential Employment Tribunal and Employment Appeal Tribunal claimants will be obliged to don their conciliatory hats and engage in an attempt to reach a settlement with their employers via ACAS before bringing their claims. Unsurprisingly ACAS is extolling the virtues of this process on the basis that it will be impartial, free and could avoid the expense of going to tribunal. All the discussions will take place “without prejudice” and so any matters discussed cannot later be relied upon in tribunal. They have gone so far as paying for Goole Ads in the run up to implementation
Settlement talks should be attempted for a month, with the potential to extend for a further two weeks. The clock will stop running whilst talks are under way so far as time limits for bringing claims is concerned although time will continue to run in circumstances where a prospective respondent contacts ACAS for early conciliation.
How practicable all this is remains to be seen. Can we really expect that when a matter has been fully explored in conciliation talks that, if those talks fail, compromising details revealed in confidential discussions will not be used? Clever cross questioning will easily winkle out this information if the other party knows it exists. So far as employees are concerned, they are likely to be at a disadvantage by virtue of inexperience and lack of fire power at that stage. Companies with HR departments and access to lawyers will be fully prepped. However, the process will buy claimants some time. If they use this time wisely, they will be putting their claim together throughout the conciliation period, picking up useful points that have come their way by virtue of the process.
ACAS is confident that it will reduce claims made to tribunals. I am bound to observe that, based on my many years of dealing with employment tribunal claims, it will be facing the challenge of trying to succeed when other attempts have conspicuously failed. Of course the process can offer outcomes that cannot be ordered by a tribunal, such as an apology. Do you know anyone with a valid employment claim arising from unfair dismissal, unlawful deduction from wages, unfair procedures or practices who would settle for an apology? No, didn’t think so!