Pre-claim conciliation

Posted on Nov 20, 2014

Achieving settlement more efficiently has been attempted via different means in the last few years, including judicial mediation schemes. Now this month sees the introduction of early conciliation through ACAS before it becomes mandatory in May. Most claims are covered by this new procedure which goes like this:

Step 1: before a Claimant can submit a claim to the tribunal he must first provide details to ACAS either by filling in the right form or telephoning them.

Step 2: ACAS will then check with the Claimant that he wants to embark on early conciliation. If he does, then the Claimant will be assigned a Conciliation Officer.

Step 3: The Conciliation Officer will check with the Claimant that it is ok to contact the employer. If the answer is yes, and the employer is willing to conciliate, then ACAS will try to achieve a settlement within the “prescribed period”. This is one month starting on the date of first contact the Claimant made with ACAS. The period can be extended once by up to 14 days.

Where ACAS can’t get in touch with the employer, where the parties don’t wish to conciliate (because there is no obligation to agree to it), or where no settlement has been reached in time, then ACAS will issue an Early Conciliation certificate which carries its own reference number which has to be entered on to the Claimant’s ET1.

The impact of this process means that the clock effectively stops when it comes to the limitation period. The period beginning from the date on which the Claimant first contacts ACAS to the date on which the early conciliation certificate is issued does not count towards the limitation period. How to count time is quite complicated, with the exact calculation depending on when the Claimant first gets in touch with ACAS and where that moment falls in the existing limitation period. One thing is for certain – if a Claimant is out of time, by applying for early conciliation, the Claimant’s claim cannot be brought back into time. It’s simply too late.

Will this really make a difference or will it turn out to be simply another administrative hurdle to go through? This will depend so much on how the claims arise and the behaviour of the parties. Too often, the relationship between employee and employer has broken down so much by the time a claim comes to be issued, that it’s unlikely that they will want to conciliate. If however, discussions have perhaps begun but have not been successful, then this early conciliation could be a good thing.

Provided that both parties buy in, then there are indeed some benefits. Given that the vast majority of cases settle at some point before full hearing, this would expedite that process. Involving somebody impartial and independent at an early stage could mean that emotions can be parked to achieve settlement. Finally, it’s a free service!

As a final footnote, we wonder how this might impact on insurance backed claims. Will insurers be requiring employees to consent to early conciliation before funding their claims?