It's good to talk (sometimes): Acas Early Conciliation is changing from 1st December 2020

In September 2020, the Government introduced amendments to the snappily titled Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014. These made changes to Employment Tribunal procedure and compulsory Acas Early Conciliation.  With Employment Tribunal applications on the rise in recent months, it’s important that employers are aware of the changes should they be involved with the conciliation process.  Our Employment Law team discusses the changes that will take effect in December 2020 and what these mean for employers.

What is Acas Early Conciliation?

Acas Early Conciliation (EC) is a mandatory step most potential claimants must take before making a claim in the Employment Tribunal. Generally, the process currently is as follows:

• Claimants are required to notify Acas of their potential claims via an online form or by telephone.
• Acas will then contact the claimant and prospective respondent (if the claimant agrees) to see if both parties are willing to conciliate and reach an agreement.
• If they are, a one month conciliation period begins.  This period may be extended by two weeks with the agreement of both parties and the conciliator.
• If conciliation is unsuccessful, Acas issues the claimant with a certificate containing a reference number.  This number must be included with the claimant’s Employment Tribunal claim form (known as an ‘ET1’) or it will be rejected by the Employment Tribunal. That may be fatal to a claim if the limit is exceeded.

What changes will be introduced in December to Acas Early Conciliation?

The most significant change that will come into effect on 1 December 2020 is the extension of the early conciliation period.  Under the current rules, the early conciliation period is one month with a potential to extend for a further two weeks. From 1 December, the early conciliation period will be lengthened to six weeks in all, with no opportunity for extension.  This change only applies to notifications received by Acas on or after 1 December; if an employee notifies Acas of their intention to make a claim before 1 December, the one month early conciliation period applies.

While this is not a revolutionary change to the early conciliation process, and it is unlikely to have a big impact on employers, as an employer you should be aware of these changes if you are involved in early conciliation on or after 1 December 2020.  You should also be aware that limitation periods on relevant claims will also be extended to take account of the extended early conciliation period.

Another change taking effect in December is greater flexibility regarding errors or missing information on the early conciliation form.  From 1 December 2020, Acas conciliators will be able to contact the parties to correct errors (such as the correct employer) on the early conciliation form at any point during the early conciliation period.  

Why have these changes been introduced?

These amendments were introduced to increase the capacity of the Employment Tribunal system. The Covid-19 pandemic has contributed to a backlog of cases as many tribunal hearings have had to be delayed. The Law Society Gazette reported in September 2020 that the backlog of Employment Tribunal cases had reached 45,000.  In addition to this, the Ministry of Justice confirmed that between April and June this year, there were 10,318 claims lodged in the Employment Tribunal, which is an 18% rise on the same period last year.  There are concerns that cases will continue to increase as employers start making redundancies and other changes to cope with the economic fallout of the global health crisis.

Other changes to the Employment Tribunal procedure already took effect in October to try and help deal with the backlog, for example:

• Allowing legal officers and non-employment judges to perform some tasks previously only done by employment judges,
• Allowing more virtual hearings by video over in-person hearings.

Lengthening the early conciliation period may perhaps lead to more disputes being resolved at this early stage, eliminating the need for a full tribunal hearing.  This would provide a speedier resolution for both parties to the dispute and reduce the caseload on an already overburdened Employment Tribunal system.  

If you are an employer faced with a potential tribunal claim, or you have been contacted by Acas regarding an application, we can discuss with you the options for defending such a claim and the potential costs involved in doing so.  We can review the chances of success, or whether alternative options may be more prudent, for example agreeing a settlement.  To discuss your situation with a member of the team, contact us today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.