Just a reminder that as trailed in my piece Time for early conciliation,as of next week, claimants can start opting to use the new early conciliation procedures. They will become mandatory for all claims a month later, with effect from 6 May. The basic process to be followed is set out in full in my earlier piece and I won’t repeat it here, save to note that there has been a minor change since the date of that last post, with the effect that claimants now have to send a separate early conciliation form to ACAS for each respondent they cite. The original statutory instrument only required one form for all respondents.
I will wait with interest to see whether the introduction of early conciliation does further decrease the number of cases going to tribunal. I remain of the view that (in very broad terms), employees are likely to be more willing to engage in the early conciliation process, in an effort to avoid fees. Employers, on the other hand, may well want to hold out and see if an employee does put their money where their mouth is and submit a claim, hence making early conciliation potentially less attractive for respondents. But that may be simplistic – there are clearly reasons for some employers to get involved in early conciliation in some cases. Advantages for employers may include:-
- Information gathering. If a claim is in the offing, the process gives you a potential opportunity to ask questions and find out as much as you can in advance, enabling you better to assess your chances of success and also to start to formulate a defence earlier, should settlement not happen. You may also be able to get some evidence of mitigation (and if nothing else, conciliation will extend the period during which the employee is going to be looking for another job, thus potentially increasing his or her chances of finding one before issuing a claim and hence impacting on the likelihood of a claim actually materialising);
- Timing. If you don’t engage, then the normal claim timetable starts to run (once ACAS has issued the relevant certificate). If you need more time to get your ducks in order, gather together evidence etc, then use the process to your advantage;
- Cost. The service is free – all the alternatives are not (and if you fail to engage and lose at tribunal, you are likely to have to pay the claimant’s issue/hearing fees, too);
- Snowball effect – are there other claimants who might come out of the woodwork if a case proceeds to tribunal? Settlement at an early stage may give you some protection as far as confidentiality is concerned (though as ever, query how effective such provisions may be, particularly in cases where individuals remain in employment);
- If you engage in a constructive spirit, it may be possible to develop a positive relationship with the ACAS officer assigned to the case. We all know how useful it can be to have a good ACAS officer explain the law/facts to an unrepresented claimant (for example, around qualifying service periods), and under the new regime, it is possible that a judicious word from ACAS may potentially dissuade individuals with unmeritorious claims from going to tribunal. Of course, it is not within ACAS’s remit to judge merit – that remains for the tribunal to do – but they can be very helpful in explaining the reality of a situation to a potential claimant.
Whatever the general trends may turn out to be in terms of engagement with the process, satellite litigation over jurisdiction and time points seems likely in the early days of the new regime.
Since writing this, ACAS has published a leaflet explaining how early conciliation works. For further details, have a look at https://www.acas.org.uk/index.aspx?articleid=4787