Recent reports have suggested the Employment Tribunal system has a backlog of around 45,000 claims. Claims are taking much longer to be heard by an Employment Judge – several of our larger cases are still likely to only be heard in 2022.

Those who have had the misfortune of being involved in an Employment Tribunal claim will be aware that before lodging a claim, any potential claimant is required to notify Acas and receive a certificate to confirm they have completed the Early Conciliation process. Ideally, Acas will help the parties reach a resolution to avoid claim being issued. Early Conciliation usually lasts for up to four weeks – with a possible extension if the parties are close to an agreement.

Unfortunately, Acas are incredibly busy and our experience is that the parties have not been notified until the four week period has almost expired. Hardly ideal.

To give to sides more chance of reaching a resolution,  on 1 December 2020, the rules of procedure for ACAS Early Conciliation (EC) were amended:

  • The period allowed for early conciliation (EC period) increased from four weeks to six weeks with no possibility for any further extension.
  • ACAS conciliators now have greater discretion to correct errors in the EC form at any time during the EC Period.

What does this mean for employers?

The new six week period should hopefully allow the parties more time to resolve the dispute pre-litigation and avoid a potentially expensive and time consuming claim.

Hopefully it will allow for a little more time to encourage parties to engage in early settlement and therefore ease the burden on the Employment Tribunals.

There are a number of key practical steps that employers can take in order to get the most out of the six-week early conciliation period, including:

  • Note when the clock started and when it expires;
  • Use ACAS to obtain as much information from the Claimant as possible, particularly concerning the exact claims and the dates of the allegations, so an early assessment of the merits and value of the claim can be undertaken.
  • Consider commercial factors – what could it cost the business if we lose at Tribunal? What are the legal fees and management time for such a claim? What is the potential reputational damage?
  • Know your negotiation parameters and stick with them – if it is your final offer, say so;
  • Make it clear any settlement discussions are without prejudice to avoid anything being used against the business in the event the dispute ends up in the Tribunal; and
  • Explain your position briefly without admitting fault, make an offer if appropriate and say nothing more.

 

16th December 2020

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