What is Early Conciliation?
Managed by the Advisory Conciliation and Arbitration Service (ACAS), Early Conciliation (EC) means that employees wanting to issue a claim at an Employment Tribunal will have to go through an initial process to see whether there is any possibility of reaching an early settlement between the parties.
If the employer does not want to progress or the conciliation is ultimately unsuccessful, ACAS will then provide the claimant with an EC Certificate allowing the employee to submit their claim.
What do the changes mean for businesses?
If you are not yet familiar with EC, now is the time to be so. EC is here to stay. Of the approximately 11,000 cases which began and ended their EC period during the first quarter (May-July), 16.5 per cent resulted in a successful settlement.
While the intention is to settle disputes as quickly and efficiently as possible, there is another school of thought that believes the large number of requests for EC are being made by employees who might be put off bringing a claim due to the introduction of fees – but see this process as a way of still securing a settlement. This may explain why 19 per cent of employees told ACAS they were not intending to take matters further and bring a claim.
What you need to know
If you are contacted, consider the following:
Do: remember even if you get a call from ACAS, you are under no obligation to progress down the EC route or negotiate during this process.
Do: select who from your organisation can engage with ACAS and crucially make sure they have an understanding of the process and what is involved. If you have more than 1,000 employees, you can register with ACAS so it has contact details for the relevant managers.
Do: get to grips with the nature of the claim. Complex claims which are of high value are best assessed early. Make sure you can gather available evidence so you are in a better position to know whether you would win and what it would cost if a claim went to Tribunal.
Do: find out as much as possible about the prospective claim. Ask as many questions as you like, including what employees are doing now and what attempts they have taken to mitigate their loss, e.g. through getting another job. You are also entitled to ask for written details of the claim. If they are serious about bringing a claim, why would they object?
Do: factor in whether this could be an isolated case or whether other employees could see a window of opportunity and follow suit. You should estimate the likely legal costs if the matter is contested by more than one employee.
Do: be aware of timing. The EC process involves a ‘stop the clock’ mechanism whereby the usual time limit for bringing a claim can be halted for up to one month, and possibly an additional 14 days, in order to allow the process to run its course. If either side refuses to engage, however, the EC certificate is issued, and the claim timetable is resumed.
Do: be aware that if EC doesn’t work out and employees go on to win their case at a Tribunal, then as well as being liable to pay compensation it is also likely you will be ordered to pay the fees for issuing and hearing the claim.
Ultimately, forewarned is forearmed when it comes to Early Conciliation. The process means that employers have the opportunity to prepare their defence early and they may be able to settle cases more cost effectively. Understanding the steps you need to take is key to seeing Early Conciliation as a positive step in employee dispute resolution.
Gearalt Fahy is an employment lawyer and partner at Watson Burton.
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