Changes to ACAS Early Conciliation

December is fast approaching, and I am not talking about the C word (…Christmas…).

The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (SI 2020/1003) came into force recently and this is bringing about the changes from 1 December 2020, as it amends the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (SI 2014/254) that originally introduced the Early Conciliation process.

What is the Early Conciliation (“EC”) process?

In short, the EC process is a time for mediation between the parties to try and reach a settlement without the need for the parties to proceed to the Employment Tribunal. The notification to ACAS, in itself, is compulsory, although there is no requirement for the parties to engage in the process.

Generally, the EC process looks like this:

• The individual (potential claimant) will notify ACAS of the potential claim either by calling them or by completing the form online;
• Once ACAS process the notification (currently this takes approximately 7 days from notification), a conciliator will be appointed to the matter and will contact the potential claimant to discuss their claim with them and explore whether they are interested in engaging in the EC process and making an offer of settlement;
• If agreed by the individual, the conciliator will then contact the employer (potential respondent) and will relay the claim alleged against them, as well as any offer of settlement;
• There may be some back and forth negotiations (during a specific period of time, this is not indefinite) whereby the conciliator will act as a middle person with a view of obtaining a settlement;
• If a settlement is agreed, the parties will be asked to sign a COT3 agreement to confirm the settlement. If settlement is not agreed, or if the parties choose to not engage in the EC process then ACAS will produce an Early Conciliation Certificate; and
• If not settled – the individual can now bring a claim to the Employment Tribunal.

What will happen from 1 December 2020 then?

The main change will be the time period allowed for the EC period. Currently, the period is one calendar month and it can be extended by another 2 weeks if the parties are interested and are engaging in the process.

From 1 December 2020, the EC period will automatically be 6 weeks overall and there will not be an option to extend this regardless of the situation the parties are in.

What does it mean, practically?

It should not change a great deal for parties that engage in the EC process or would do in any event. However, the hope is that this change will give a greater window and may allow for better engagement and resolution before matters reach the Employment Tribunal. Nonetheless, the notification obligation and time limitations for claims (often one month from the date of the certificate) remain unchanged.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*