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How the Acas Early Conciliation Scheme is faring

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How the ACAS early Conciliation Process is faring

The Acas Early Conciliation Scheme was brought in on 6th May 2014 as part of the coalition Government’s attempts to reduce the number of employment tribunal claims. The scheme requires aggrieved employees to notify Acas of their employment issue prior to filing a claim at the Tribunal, giving Acas up to 6 weeks in which to try to reach settlement with the employer and avoid the claim going any further. If conciliation is unsuccessful, the employee is issued with a reference number which it must quote when bringing a tribunal claim.

As a new concept, compulsory Early Conciliation raised considerable uncertainty as to whether this would be effective in settling disputes. Over one year on, Acas has the following statistics to share relating to how this process is faring:

  • Over 83,000 Early Conciliation cases were dealt with between April 2014 and March 2015.
  • Three out of four employees and employers agreed to try Early Conciliation.
  • Of those Early Conciliation notifications received between April 2014 and December 2014:

63% did not proceed to a tribunal claim.
15% resulted in a formal settlement agreement.
22% progressed to a tribunal claim.

  • Of the 22% that proceeded with a claim, more than 51% later settled by way of a formal agreement.

Whilst these figures may not appear to be too impressive, the fact is that an employee must pay a tribunal fee to bring a claim, meaning that a number of these cases will have been brought speculatively with no real desire to bring proceedings against the employer. Acas will consider a 15% settlement rate to show the scheme to be a success.

Early Conciliation cases

In addition to the above statistics, we have also seen a number of judgments relating to Early Conciliation and how this affects the Tribunal process when settlement cannot be achieved early on. Below is a summary of some of the more significant judgments made since its introduction:

1. Claim rejected for failure to comply with Early Conciliation

In the case of Cranwell v Cullen, the Employment Appeals Tribunal (“EAT”) held that the Employment Tribunal was right to reject a claim where the employee had failed to engage in Early Conciliation.

The employee’s representatives, argued that she had not engaged in Early Conciliation due to the sensitivity of the claim which concerned allegations of sexual harassment and abuse. The EAT, whilst sympathetic, held that the rules regarding Early Conciliation were clear; this was a step that the employee was required to take before issuing the claim and she should have advised Acas of her concerns. Acas would likely have quickly concluded that there was no prospect of success and that the employee was then free to bring her claim at the Tribunal.

2. Claim rejected for incorrect Early Conciliation number

In Sterling v United Learning Trust, the EAT decided that a claim was brought out of time after the employee failed to state the correct Early Conciliation number on their claim form.

Whilst the employee had complied with the Early Conciliation prior to issuing the claim at tribunal, the Early Conciliation reference number had not been correctly included on the tribunal claim form. The Judge ruled that it is implicit that the Early Conciliation number is not only included on the claim form, but that it is also accurate.

3. Same rules on Limitation Dates apply even where Early Conciliation occurs before termination

Traditionally, a claimant had three months (less one day) from the date the employment is terminated to bring a claim of unfair dismissal. At its simplest, this limitation date is now extended by the period of time in which Early Conciliation lasts, provided Acas are notified within the original deadline.

However in Chandler v Thanet District Council the claimant instigated the Early Conciliation process before her employment was terminated. The employer argued that the days spent engaging in Early Conciliation prior to dismissal should not be counted, as time could not start to run until dismissal itself. This would have meant that the employee would have been out of time to bring her claim.

The Tribunal disagreed with the employer, deciding that all time spent during Early Conciliation should be added on to the limitation date and the claim was therefore brought in time.

If you would like further guidance on how Early Conciliation works, or require assistance in defending a claim, please feel free to contact myself or one of our experienced Employment Team on 01908 660966 or 01604 828282.