Who exactly are ACAS?
Since April 2014, employees wishing to commence tribunal proceedings have to attempt Early Conciliation with their employer through Acas before they are able to issue proceedings. This is a fixed legal requirement and a tribunal will not accept a claim unless Acas have first issued a conciliation certificate (‘EC certificate’).
This is a procedural requirement, so it is highly unlikely that any employer would receive notification of a tribunal claim without first being contacted by Acas to discuss potential conciliation. Indeed, an EC certificate will only be issued to the employee once both parties have been given the chance to attempt conciliation with each other.
There are limited exemptions to the need to attempt Early Conciliation, the usual one being that the employee is part of a group of employees wishing to commence tribunal proceedings and one of the other employees to the action has already received an EC certificate regarding the same core dispute.
What will the telephone call mean?
This means that, at the time an employer receives an initial call from Acas, a tribunal claim has not been issued. At this time, Acas have merely been informed of a potential claim from the employee and wish to find out whether the employer will participate in discussions with an ACAS Conciliation Officer (a ‘CO’) acting as a neutral third party mediator. This call will normally be made within two days of the employee confirming to Acas that they wish to undertake Early Conciliation.
In the event that the employer agrees to participate in Early Conciliation with the employee, Acas will give the parties one calendar month to attempt to reach agreement. Should both parties still be negotiating at the end of this period, they can agree to extend conciliation by a further 14 days.
If the employer declines the opportunity to engage in conciliation at this stage (or makes themselves unavailable for contact), Acas can issue the EC certificate early and inform the employee of this.
What is Early Conciliation?
The Conciliation Officer’s main role will be to explain the procedures open to the parties, encourage the use of internal procedures (such as disciplinary and grievance procedures) and seek to establish common ground between parties to achieve a resolution.
Successful resolution of the issue will lead to the employee dropping any potential tribunal claim. Any settlement can be recorded in a legally binding contract, known as a COT3 form, which will ensure that the employee cannot later make an employment tribunal claim on the same facts and issues.
If agreement cannot be reached, Acas will issue the employee with an EC certificate containing a unique reference number at the end of the period of conciliation. This number can be inserted into an employment tribunal form and allows the employee to proceed with bringing a tribunal claim.