New rules which take effect this month means that many disputes that previously would have gone to an employment tribunal will now have to go into mandatory early conciliation.
Once details are provided to Acas, either on a standard form or over the telephone, a ‘stop-the-clock’ mechanism is triggered the following day. In practice, this will mean that the claimant’s time to lodge an employment tribunal claim will be put on hold for up to one calendar month.
For businesses, this may be the first they learn of a potential new claim. It is also within Acas’ extended remit to offer both parties a month of pre-claim conciliation, in an attempt to resolve the dispute. However, there is no obligation on an employer to take part in the process and a number of employers may instead choose to wait to see if the employee is willing to pay the fee required to lodge a tribunal claim within the required timescales. This scenario is also more likely in the case of more complex claims, where it would not be appropriate to start negotiations at an early stage.
Importantly, there is no additional obligation on potential claimants to take any further part in the process after they provide the initial information, including their employer’s contact details, to Acas. After that stage, any further participation is purely voluntary.
One important consequence of the new regime is the impact it will have on time limits for claimants to bring claims to an Employment Tribunal, which is normally within three months of the act complained of. Once details are provided to Acas, either on a standard form or over the telephone, a ‘stop-the-clock’ mechanism is triggered the following day. In practice, this will mean that the claimant’s time to lodge an employment tribunal claim will be put on hold for up to one calendar month, unless either party does not want to take part. There is a possible extension to the period of up to 14 days if Acas believes the claim is close to settlement. If either settlement is not possible or the period allocated to possible conciliation has expired, the pause on the normal time limits will end and they will continue to run.
The early conciliation process will be seen as having come to an end when the prospective claimant receives an Acas certificate. Once received, this certificate will provide a reference number which will be required by the claimant in order to lodge an employment tribunal claim.
Significantly, if the time limit for lodging a tribunal claim is due to expire within one month of the Acas certificate being received, the time limit will instead expire one month after the receipt of the Acas certificate. It seems likely that the impact on time limits may cause a degree of confusion and, potentially, lead to more disputes over whether claims have been brought in time.
It is worth keeping in mind that an employer may also contact Acas to start the conciliation process at an earlier stage, if they believe a possible claim may be on the way. However, in such instances, the employer will not benefit from the ‘stop-the-clock’ provision. This could still be beneficial to employers, as it would provide an opportunity to scope out issues early, which can subsequently be resolved.
The Government has undertaken a regulatory impact assessment ahead of its implementation of early conciliation, which suggests annual savings in staff time and legal costs upwards of £64.6m. This saving is based on the anticipated reduction of employment tribunal claims (16,554) and the average amount an employer spends responding to a claim (£3,900). Nonetheless, depending on the type of dispute, there may be good reason to engage with Acas, as such a platform may allow differences to be settled on your own terms, free from any publicity and, most importantly, could avoid the time and cost that a formal tribunal process will involve.
