Kate Brooks
Partner, Solicitor & Head of Employment/HR Services
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Date Published:09 Mar 2016 Last Updated:22 Sep 2021

To conciliate or not to conciliate, that is the question.

Employment Law Advice

From April 2014 anyone who wants to bring an employment claim will have to try to conciliate through ACAS first.

ACAS stands for Advisory, Conciliation and Arbitration Service. ACAS offer a free and impartial conciliation service between employees and employers.

I can hear you asking will this change to the law make any difference.

Currently when any employment claim is sent to the tribunal the claim is allocated an ACAS conciliator who will work between the parties to try to negotiate an agreement.

At the moment there is also a pre claim conciliation service which can be initiated by an employee or employer before the claim is sent to the tribunal however this is not mandatory.

Why should you try to conciliate early?

The benefits of starting pre claim conciliation are that the costs and risks of staring a claim can be avoided if an early settlement is reached.

ACAS can also offer a simple version of a settlement agreement which does not require the employer to make a payment towards the employee’s legal fees.

In addition the employer may be able to enforce confidentiality and prevent the employee from making derogatory statements at an early stage.

How will early conciliation work?

From April the employee will be required to produce evidence that they have attempted conciliation through ACAS before bringing a claim.

Most claims in the tribunal must be lodged within 3 months of the triggering act. From April 2014 whilst early conciliation is being used this time limit will be paused.

An ACAS conciliator will be assigned to each matter and they will attempt to facilitate settlement. If an agreement cannot be reached then ACAS will provide a certificate and reference number so that the employee can issue a claim. The issuing of this certificate starts the time running again for limitation.

Early conciliation will only be successful where both parties are prepared to engage. As an employer you do not have to agree to enter into early conciliation.

I am not sure that early conciliation will make too much difference to the amount of claims lodged in the tribunal. This is because there is already a pre claim conciliation service in place. Also tactically in light of the introduction of tribunal fees for employee’s it is likely that employers will want to wait and see whether an employee is prepared to incur to issue fee of normally £250 before engaging in off the record negotiations.

If you would like to discuss your company’s or your own particular issue please contact me on 01202 636210 or kate.brooks@ellisjones.co.uk.