But it’s too early to judge effectiveness says Furley Page. A service which aims to resolve employment disputes swiftly without the need for a tribunal has got off to a successful start, according to the Advisory Conciliation and Arbitration Service (ACAS).
The early conciliation scheme was launched at the beginning of April 2014 and became mandatory a month later, which means that anyone planning to bring proceedings at an employment tribunal must now notify ACAS of their intention in the vast majority of cases.ACAS is expected to publish the full results of a survey into the service this year but latest figures suggest the new regime is working, says employment law specialist Melissa Nelson.
“There are, however, many factors which could contribute to claims not progressing to a tribunal,” says Melissa, a solicitor at leading south east law firm Furley Page. “The ACAS survey will provide further information on what influences the decisions of those involved, including those who decide not to pursue their claim, so it will be interesting to see the results.”The latest ACAS statistics reveal that, between 6 April and 30 September 2014, more than 37,400 notifications were made to ACAS and that, between May (when conciliation became mandatory) and the end of September, the number of notifications has been fairly consistent at around 6,700 per month.
The statistics show that only 10 percent of employees and employers reject the initial offer of early conciliation. They also show that 18 percent of the cases notified to ACAS between April and June resulted in a COT3 agreement (that is, a settlement agreementthat is reached with the help of an ACAS conciliator), and 58 percent did not progress to a tribunal claim – either because the employees did not pursue the claim further after conciliation or because agreement was reached without the need for a COT3.
“The ACAS survey will reveal more but it is anticipated by many commentators that the tribunal fee regime will be the dominant factor behind the 58 percent figure, deterring legitimate claims together with the vexatious,” says Melissa. To allow time for compulsory conciliation, time limits for issuing proceedings are extended in two ways. First, the limitation clock stops during the conciliation period, when the prescribed information is supplied by the prospective claimant to ACAS; and second, if the time limit would otherwise have expired during that period, claimants will have a further month after it ends to lodge proceedings.
The scheme’s key points:
The prospective claimant must provide certain prescribed information, such as their and the respondent’s contact details, to ACAS by phone or by completing a simple form. Details of the potential claim will not need to be provided.
If both parties are willing to discuss settlement, the ACAS conciliator has one month from receipt of the request form to promote settlement, but will not be permitted to advise on the merits of the claim. The discussions between both parties are ‘without prejudice’ so they cannot be brought to a tribunal’s attention if negotiations break down. If both parties agree, the conciliation period can be extended by two weeks where there is a prospect of achieving settlement.
If early conciliation is successful, the settlement can be recorded in a COT3 or a settlement agreement
If conciliation fails because a party could not be contacted, one of the parties opted out of conciliation, or they failed to reach an agreement before the expiry of the conciliation period, ACAS will issue an Early Conciliation Certificate stating that the claimant has fulfilled the early conciliation duty. The prospective claimant will need the certificate to start proceedings, as they will have to provide the unique early conciliation reference number (as set out on the certificate) on the claim form ET1.
“Our advice to employers at this stage would be to not adopt a blanket policy as to how you will deal with the early conciliation process but to treat each communication from ACAS separately,” says Melissa.
“The circumstances of each case should help you determine whether it’s worth entering into conciliation discussions to promote a settlement at an early stage or whether to wait and see whether the employee is genuinely minded to issue proceedings, for which a fee will be payable. The subject of settlement can always be broached with the claimant at a later date.”
