Mandatory Early ACAS Conciliation

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As from Tuesday, 6th May 2014, Mandatory early ACAS conciliation (“Mandatory EC”) came into force. This means that for any employee/ex employee (“potential Claimant”) wishing to bring a claim which amounts to “relevant proceedings” in the Employment Tribunal, they will now have to engage in early conciliation before they can issue proceedings in an Employment Tribunal. This means calling ACAS and a designated ACAS officer then speaking to their employer or ex-employer to explore settlement (unless the potential Claimant does not want this to happen – which will be unlikely). The objective of this provision is that it is hoped that more cases will settle at this early stage and hence proceedings will not then need to be issued in the Employment Tribunal. Save for a few very limited types of claim, Mandatory EC will apply to all potential claimants

‘Relevant proceedings’ include a variety of claims such as unfair dismissal, redundancy, trade unions and collective issues, certain claims in relation to families and pregnancy, time off work, transfers and insolvency, discrimination and equal pay, the Working Time Regulations 1998, contracts of employment, wages, atypical working and certain other miscellaneous statutory rights.

The key effects of Mandatory EC on bringing a tribunal claim are:

  • Claimants will have to include on their Claim Form a unique early conciliation (“EC”) reference number provided by ACAS to show that they have satisfied the EC requirement, otherwise the claim will be rejected.
  • The clock will be stopped on limitation periods, starting on the date the prospective claimant contacts ACAS and ending on the date they receive (or are deemed to have received) an EC certificate from ACAS.

It remains to be seen what the likely impact of the Mandatory EC will have but one view is this. It will only cost a potential Claimant their own time in picking up the phone (plus the nominal cost of the call) to speak to an ACAS officer with a view to trying to reach a financial settlement with their employer or ex employer which the ACAS officer will explore with the employer/ex employer on behalf of the potential Claimant (albeit without giving any legal advice). Given the simplicity and little cost to the potential Claimant of this, once this process becomes well known to the public at large, the use of this process may become popular as the potential Claimant really has nothing to lose. If settlement is not reached then the potential Claimant will have to decide whether to issue proceedings or not at that stage. In other words, they are not committed to going to an Employment Tribunal just because they engaged in the Mandatory early conciliation. It may well therefore be the case that more employers will receive a call from a disgruntled potential Claimant via ACAS at an earlier stage. Previously they may not have heard anything at all, given that some potential Claimants may have been deterred from taking any legal action given the time, costs and stress of going through Employment Tribunal proceedings.

Written by
Edward Aston
8th May 2014