Briony Cruden, of Bannerman Burke (pictured here at the firm’s employment law seminar held recently in Melrose) and a member of the United Employment Lawyers network, gives a first-hand account of Acas’ Early Conciliation Service
Last week I had my first encounter with Acas’ Early Conciliation Service. I am a confessed over-thinker and the mere whiff of ambiguity on the notification form saw me on the phone to clarify matters. The Acas website encourages you to get in touch and has even set up a dedicated helpline to deal with the tens of thousands of calls expected over the coming months. Acas report that they have dealt with around 1,000 calls a week since the launch of Early Conciliation on 6 April 2014. That 890 of those calls were from me last Friday afternoon clarifying which form to fill in for a linked claim is neither here nor there.
So how did this journey begin?
As of 6th May 2014 it has become compulsory for all claimants intending to take an action to an Employment Tribunal to engage with the new Early Conciliation service provided by Acas.
This requirement compels claimants and employers to try to resolve their disputes before going to an Employment Tribunal. It is a free service and if Early Conciliation doesn’t resolve the dispute then the claimant will still be able to lodge an employment Tribunal Claim. Whether it is a tick box exercise or succeeds in making inroads into reaching settlements remains to be seen.
Acas however are confident in the service with its chairman Sir Brendan Barber, saying: “Early Conciliation is built on the success of a similar optional service that Acas used to run called Pre Claim Conciliation (PCC). The service dealt with around 20,000 cases a year and over three-quarters of these were resolved in a way that did not lead on to a tribunal claim.”
For the majority of employment actions Early Conciliation has to be completed before any further steps can be taken in an action because without an ET1 code supplied by Acas, forms cannot be submitted. “Nearly everyone should have this number before they fill in a claim form” provides the information box at 2.3 of the ET1. Those who are not “nearly everyone” include people making claims against M15 and the like. So, for the most part, it means everyone.
Early Conciliation is also available for employers who would like to explore settlement in an effort to avoid a claim being made against them if they suspect an employee may be considering action. To do so employers contact Acas directly to discuss how to proceed with Early Conciliation. Importantly, engaging in the process is without prejudice for both claimant and employer.
Stopping the clock
Early Conciliation stops the three-month time limit for claimants raising an action. Once the early conciliation form has been submitted the clock is suspended from that day for one month to allow Early Conciliation negotiations take place. Where negotiations are not successful then the claimant is provided with the code to allow them to proceed to tribunal.
How is it in practice?
The forms are short and relatively simple. The details of the individual claimant or group claimants are submitted along with the employer’s details and, in group claims, the details of the representative. In all cases Acas contact the claimant or claimants to find out the broad issues and then contact the employers to inform them of what they have been told by the claimant(s) and see if there is the possibility of an offer. If there is an offer, they take this offer to the claimant(s) and revert back the employer with the response. Acas can provide no advice to either side as to the size of the offers which should be offered or accepted.
The Early Conciliation notifications page can be found online at Acas (https://ec.acas.org.uk/) but finding the forms proved not as simple as it should be. Access to the Early Conciliation Notification Forms is only actually available for individual claimants online while employers must ring up to discuss early reconciliation and representatives for group claims have to phone to request the link which is then e-mailed to them.
A touch of exasperation
My exasperation first surfaced before I had actually reached the notification form. Following the “Representatives of claimants” link brought me to information stating that individual claimants have to fill in the early conciliation notification form themselves. I phoned Acas and asked why this was necessary when we have all the information and clients generally expected us to take care of things like this. Acas’s official line was “the claimant must complete this step themselves in the first instance” but the somewhat sympathetic Acas helper on the other end of the phone admitted “there is no way of us telling who has done it though”.
Now, I’m no rule breaker but in practice a representative could fill it in on their behalf. “A friend of mine” did this and just made sure to inform the claimant that Acas would contact them within one working day of the form being submitted. I do find it frustrating though that the first step in this process is somewhat uncertain and may lead to breaking rules. Once representatives of individuals have worked out NOT to click on the representatives link but to click the individuals link, or get their clients to do so, that brings us to group actions.
For claims concerning two or more claimants, the way to access is by an Early Conciliation Group Notification Form online. Bafflingly, this has to be requested by telephone. Representatives must call the Acas Early Conciliation helpline on 0300 123 1122 and inform them they are representing a group claim. The link to this form is then sent via e-mail. It seems a cumbersome and time-consuming process. Acas informed me that it is to ensure that people are filling in the correct forms.
It crossed my mind that such an e-mail could be saved to use the link again and avoid a phone call to Acas each time. A quick check today to see if the link could be used to access the group notification form more than once confirmed that it can.
A “Group Notification (MU) Number” is requested in Section A of the group notification form but is not actually generated until after the initial group notification is submitted. The MU number is sent via e-mail and can be used in instances where another claimant to a group action crops up and would like to join the group action. It is a little perplexing that it asks for this on the initial group notification form but is an example of something that once you know you won’t forget.
The best of both worlds?
Acas state that the purpose of service is to “settle differences by agreement rather than through a tribunal hearing”. Avoiding Employment Tribunals is undoubtedly for the best in many cases. That it is in all cases is unlikely. The blanket approach of the Early Conciliation process may give rise to claimants feeling they have another hurdle to surmount in their passage to the tribunal. On the other hand, Acas believe that it saves employers and employees the stress, cost and anxiety associated with the tribunal process. Perhaps it provides the best of both worlds by introducing all parties to dispute resolution with the guarantee of resort to tribunal should settlement not be reached. Watch this space.