New rules on Acas conciliation come into force
From 1 December, the Rules of Procedure for Acas Early Conciliation have changed to allow greater flexibility in handling minor errors and to change the Acas Early Conciliation process to 6 weeks as standard, with no opportunity to extend. These changes, which were announced in September, aim to increase capacity in the Employment Tribunals, which have been hugely affected by the Covid-19 pandemic. For more information on the effect of Covid-19 on Employment Tribunals, please see our previous article here.
What is the purpose of Acas Early Conciliation?
The Advisory Conciliation and Arbitration Service (Acas) is an independent, impartial organisation which liaises with both parties to an employment dispute with regard to possible settlement. Since May 2014, notification to Acas has been a mandatory requirement prior to litigation, with an Acas Early Conciliation (EC) certificate being required in order to submit a claim at the Employment Tribunal (ET). However, engagement in the conciliation process itself is not compulsory. The claimant will notify Acas by submitting an EC form online or by post, or by telephoning Acas. Depending upon whether the claimant wishes to enter into the conciliation process, Acas will then either contact the potential respondent to try and facilitate negotiations, or issue the EC certificate immediately.
Position from 1 December 2020 onwards
- Standard Acas EC Period increased to six weeks
The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (the Amendment Regulations) introduced new rules which came into force on 1 December. The Amendment Regulations provide for a six-week conciliation period in respect of all potential claims; previously it was one calendar month. In addition, there will no longer be scope to request a two week extension to the EC process as this is effectively now included in the six week timeframe.
- Correcting Errors
The Amendment Regulations also allow for Acas conciliators to correct any errors in the EC form at any point during early conciliation. They are also now able to contact the prospective claimant to obtain any missing information. Prior to 1 December, if information was missing, the only option open to an Acas conciliator was to reject the EC form. In addition, cases would often proceed to the ET using information which appeared to be incorrect because there was no mechanism to make alterations to the form. As a result, many subsequent ET cases were rejected because the information on the ET1 and Acas Certificate did not match.
What this means for employers
In practice, the time extension will have little impact on employers, although it is important to aware that the default time period has changed. Having a standard approach removes the need for parties to consent to extensions of the conciliation process and hopefully this should help to facilitate settlement between the parties. With regard to Acas conciliators being able to correct errors on the Acas EC form, strike out applications based on errors in the EC forms will be much harder for respondents to achieve in future.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Emily Edwards to discuss any issues you are facing.