New employment rules designed to reduce the number of workplace disputes going to tribunal were brought in earlier this month.
Introduced by the Enterprise and Regulatory Reform Act 2013, the early conciliation scheme makes it compulsory for employees wishing to lodge a tribunal claim to first notify ACAS.
The aim is both parties will initially pursue the dispute through an ACAS conciliator, but if either side does not wish to do this, or an agreement cannot be reached within a month, ACAS will issue a certificate to demonstrate it was attempted. Without this a claim will not be accepted by a tribunal.
Early conciliation has been available since April, but from May 6 the requirement to notify ACAS became compulsory.
Businesses are not required to attempt conciliation once ACAS has been notified, but it is important it is at least considered as there may be benefits.
A business, for example, would have advance notice an employee is considering bringing a claim and the reasons why. It may be able to settle it quickly and cheaply and, if that is not possible, a business will get an early start on preparing its defence.
Unless a claimant is eligible for remission, if a claimant decides to go to tribunal, they will have to pay a fee of up to £250 to issue a claim and a further fee of £950 for the final hearing. Many claimants may be more willing to reach a sensible compromise through conciliation rather than run the risk of losing at tribunal.
It is important to remember ACAS will not provide an opinion on the merits of any claim, but will provide information about the law and how compensation is assessed. Again, this is important as it may give claimants a more realistic view of the potential value of their claim and the legal hurdles they will have to clear. It may also give an employer warning of the claimant’s settlement expectation.
There are numerous other things to consider and the only real advantage to rejecting an offer to conciliate is where an employer is already aware of the potential claim and wishes to ‘wait and see’ whether the claimant is serious.
It is early days and we will be keeping a very close eye on the impact it will have on the future number of cases being settled at tribunal.
* Fergal Dowling is head of employment at Irwin Mitchell’s Birmingham office
