Employment e-Brief – ACAS Early Conciliation: Our Thoughts & Recommendations

ACAS Early Conciliation became compulsory for employees who want to bring Employment Tribunal claims from 5 May 2014 (although the scheme has been in force on an optional basis from 6 April). It means that unless ACAS have issued a certificate then the tribunal cannot issue the claim.

Early statistics have shown that ACAS have received around 1,000 enquiries every week since the (voluntary) Early Conciliation Scheme came into force on 6 April, with 98% of those people deciding to try the service.  The previous pre-claim conciliation scheme only dealt with 20,000 cases per year (so an average of around 385 per week).

Therefore statistically, employers are now much more likely to be contacted by ACAS regarding a workplace dispute than they were previously.

The increased uptake in ACAS contact is against a backdrop of a significant reduction in the number of claims that are being issued in the Employment Tribunal, suggesting that many employees want to engage in Early Conciliation yet may not issue proceedings in the event that the conciliation is unsuccessful.

We have already noticed certain trends in terms of the ACAS approach:

• Whilst ACAS are not supposed to give legal advice or debate the merits of claims, we have noticed that conciliators are increasingly doing this in order to promote settlement;
• Some report that conciliators appear to be increasingly ‘pushy’ in terms of trying to encourage employers to make opening offers of settlement, encouraging small opening offers to be made and then looking to push the figure higher and higher;
• Some less worldly employers see the contact from ACAS as some sort of “official” indication that they really ought to settle.

We advise that you treat the ACAS first contact with as much caution as you would if it was a tribunal claim. Let us tell you the best strategy and whether the early settlement suggestion has any merit. Very often it will have none! We are happy to debate the merits with ACAS for you and this minimises the risk of being pushed into making any unnecessary settlement offers.

Given the fact that Claimants will have to pay an issue fee prior to bringing a claim to an Employment Tribunal, often the best tactic is to test that employee’s resolve and wait and see whether or not proceedings are issued against you.  However, in some circumstances, especially where you are in a weak position in terms of merits, it may be advantageous for settlement discussions to take place at an early stage. Specialist advice is only a phone call or email away!

To discuss this e-Brief in more detail please contact Philip Paget employment Partner on 0113 227 0212 or at philip.paget@gordonsllp.com.