Employment Law Update: The advent of pre-claim conciliation

The purpose of this new service is to attempt to resolve workplace disputes such as unfair dismissal, unlawful deduction of wages, redundancy, discrimination etc. Effectively, this service provides another opportunity for the relevant parties to try and settle their differences (after any internal work place procedures have been completed) and, if successful, is a far more cost effective and efficient option than proceeding to a Tribunal hearing.

This new service is free and involves the participation of the employee and employer and an ACAS conciliator.

It will become compulsory for Tribunal claims issued on or after 6 May 2014 to be referred first to this new early conciliation service; and after this date tribunal claims will not be accepted unless the complaint has been referred first to ACAS and a conciliation certificate issued. The certificate will essentially confirm that the relevant early conciliation requirements have been satisfied.

Participation in the scheme is voluntary for both employer and the employee – but if both parties agree to participate then early conciliation can take place for up to one month (plus a further 14 days in certain circumstances). This conciliation period will “stop the clock” for the purposes of issuing a Tribunal claim.

If this conciliation period ends without agreement; or the ACAS conciliator decides that it is not possible to reach a settlement then ACAS will issue a conciliation certificate and the individual employee will then have 4 weeks from the date of the certificate in which to issue a claim – even if the normal limitation period for issuing a claim would usually have expired before then.

Practical effect of the scheme

Although this scheme could certainly be used to conciliate claims that are fairly straightforward, it may not be appropriate for more complex claims involving, for instance, whistleblowing or discrimination.

Furthermore, an employer might be reluctant to settle a claim before being able to consider the legal merits in full. An employer might also not be prepared to settle before understanding whether an individual was prepared to pay their tribunal fee to take their claim any further.

ACAS conciliation will still be available following the issue of any tribunal claim if both parties request it or the relevant conciliator considers there remains a chance of agreeing a settlement.

Steps to consider

As an employer, you should make your relevant managers and staff aware of this new scheme in the event they receive a call from ACAS.

In some cases, employers may even decide to nominate a central point of contact within their organisation to take any calls from ACAS; and in these circumstances, all other members of staff should be informed that in the event of a call from ACAS, it should be referred to the nominated central contact.

Furthermore, employers may also wish to consider whether their central contact(s) require training or whether they should nominate their legal representatives to deal with calls on their behalf.

For further information, please call Nick Smith, Employment Partner on 0191 281 6151 or email nsmith@mincoffs.co.uk