I have expressed my reservations about whether ACAS early conciliation will bring any significant benefits to dealing with employment tribunal claims. However, the Scheme is now operational and it is therefore important to know how it works in practice. The Scheme started on 6 April and is currently voluntary but from 6 May it will be compulsory.
A major concern is how the Scheme will impact on the very strict and short time limits within which claims must be brought: generally three months.
Before a claim can be commenced it is necessary to provide notification to ACAS and to provide basic details including contact information. The easiest way to do this is by going to the ACAS website at www.acas.org.uk/earlyconcilation. As is increasingly the case when using such websites the enquirer is then taken through a couple of pages, including a lengthy explanation of the benefits of the Scheme before arriving at the form itself. Before proceeding to fill out the form, and in a rather schoolmasterly manner, the enquirer is then required to tick a box to say that they have read and understood the previous page.
The form itself is pretty straightforward. As well as providing name and contact details, the enquirer is asked to supply the employer’s postcode in order to trigger a business address search. Having tried this out it works quite well for medium and larger sized businesses. However, small businesses might not be so readily found and, of course, any error in inputting the postcode could produce false results. There is also an option to add the employer’s telephone number. As for the employment itself the enquirer is asked to provide the start date, end date, job title and the date of the event which is the subject of the claim.
Interestingly, the form also indicates that contact will be made using the telephone number(s) provided. However, there is no obligation to provide a telephone number or an email address so this may lead to practical difficulties.
Notification needs to be provided to ACAS within the normal time limit for bringing a claim, for example three months less one day for unfair dismissal claims. In one sense this makes the process easier for claimants since there is no need at this stage to set out full details of the claim in an ET1.
Once notification is provided someone from ACAS should make contact by the end of the following working day to check the details submitted and explain the process. At an unspecified point thereafter an ACAS conciliator will get in touch and ask for consent to approach the employer with a view to conciliation. If consent is not provided, or the employer cannot be contacted or doesn’t want to conciliate the case will be closed and a conciliation certificate will be issued. This is needed in order to lodge a claim with the Employment Tribunal.
The effect of contacting ACAS is that the time limit for presenting the claim is paused for up to one calendar month plus a further 14 days if more time is needed for conciliation. If the conciliation does not conclude within the available timeframe ACAS will close the process and issue the certificate, enabling the tribunal claim to proceed. An obvious area for potential difficulties is what happens if ACAS fails to close the conciliation in time or fails to issue the conciliation certificate in time?
Since fees have been introduced it has been apparent that employers are far less willing to settle claims without waiting to find out whether claimants are serious about their claims by paying to commence proceedings. The ACAS scheme is unlikely to do anything to halt that trend. Indeed, it may encourage employers not to engage in conciliation. On the other hand it is open to employers to initiate early conciliation. There is no form to fill out and all that is required is to call 0300 123 1122. However in this case there is no extension to the time limit.
If a claimant is legally represented it is still necessary for the claimant him or herself to make the initial contact with ACAS. However, once ACAS has confirmed that a representative is appointed, negotiations will be conducted with the representative.