When faced with an employee dispute early conciliation can be one of the most expeditious and cost-effective methods of resolution for all parties involved. In this way both you and your employee, or ex-employee, may avoid the time, expense and stress associated with employment tribunal proceedings.
What is early conciliation?
Early conciliation is a system of mandatory pre-claim conciliation. The statutory provisions that govern the use of early conciliation are set out within the Employment Tribunals Act 1996 (as amended) and the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014.
These provisions require that before a claim can be issued in the employment tribunal, either party must have made contact with the Advisory, Conciliation and Arbitration Service (ACAS).
ACAS is a publicly funded independent organisation that offers free employment advice, training and informal means of dispute resolution, including early conciliation, as an alternative to tribunal proceedings.
Why use early conciliation?
Early conciliation is designed to help both you and your (ex-) employee resolve a workplace dispute on mutually acceptable terms. ACAS will offer you and the prospective claimant the opportunity of trying to resolve your differences without the need to formally engage in employment tribunal proceedings.
As an informal process, agreed outcomes in early conciliation can include solutions not otherwise available at an employment tribunal, for example, an apology. As such, this process can often prove useful in restoring a working relationship in circumstances where the prospective claimant remains in your employment.
The early conciliation notification
A prospective claimant will be prevented from lodging a claim in the employment tribunal unless the complaint has first been referred to ACAS, and an early conciliation certificate issued. To satisfy the statutory requirements, a prospective claimant must either submit a completed early conciliation form or, alternatively telephone ACAS, providing the name and address of both prospective parties.
In circumstances where a prospective claimant notifies ACAS of a potential claim and the claimant consents to early conciliation, you will be informed of this and invited to participate in that process.
ACAS has a statutory duty for up to a period of one calendar month to promote settlement between you and your (ex-) employee, although this period can be extended by up to two weeks with the parties consent.
Is early conciliation mandatory?
Whilst the initial notification to ACAS is mandatory, thereafter the early conciliation process is voluntary. As such, neither you nor your (ex-) employee will be obliged to participate in early conciliation, and either party can elect to withdraw from the process at any stage.
Once a claim has been lodged with the employment tribunal, post-claim conciliation will continue to be available to the parties with a view to resolving the dispute prior to any hearing, or even after a hearing has commenced.
Are there any exceptions to the rule?
There are limited circumstances in which notification by the prospective claimant is not necessary prior to lodging a tribunal claim. This includes where you, as the prospective respondent, have already contacted ACAS in respect of the workplace dispute. As an employer you may wish to make use of the services offered by ACAS in circumstances where you anticipate that a workplace dispute is likely to lead to an employment tribunal claim.
Other statutory exemptions include where the prospective claimant is presenting a claim on the same form as other claimants and at least one of them has complied with the requirement for early conciliation. However, even where an exemption exists the parties can still to try to resolve the workplace dispute through early conciliation.
The conciliation process in practice
In the event that both parties agree to participate in early conciliation, ACAS will appoint a conciliator. In practice, the conciliator will talk through the issues with the parties, or representatives, to establish any common ground and explore ways in which the potential claim might be resolved.
This will be done mostly via telephone calls, although in some cases a meeting, chaired by the conciliator, may also be considered helpful.
What is the role of the conciliator?
The ACAS conciliator is both impartial and independent. The conciliator is not there to represent either you or your (ex-) employee, nor are they part of the tribunal system. The conciliator will seek to help both parties gain a better understanding of their respective positions and explore ways of resolving any differences on mutually acceptable terms.
The conciliator will not, however, advise on whether to accept any proposals for settlement, nor will they advise on the merits of any claim.
The Early Conciliation Certificate
If the ACAS conciliator has been unable to make contact with either party, or either party advise that they do not wish to participate in the process, an Early Conciliation Certificate confirming that the statutory requirements have been met will be issued.
Further, where the parties choose to participate in early conciliation but the conciliator believes, either during or upon expiry of the conciliation period, that no resolution can be reached, an Early Conciliation Certificate will again be issued.
When early conciliation works
If you and an (ex-) employee are able to successfully resolve your dispute through early conciliation, the ACAS conciliator will record the terms of your agreement on a settlement form to be signed by both parties. This will constitute a legally binding agreement precluding the prospective claimant from lodging a tribunal claim in respect of the dispute in question.
In circumstances where early conciliation has not proved successful, the prospective claimant may lodge a claim against you, although conciliation will continue to be available up until the tribunal makes a final determination.
Extension of time limits
If an employee wishes to lodge a claim against you in the employment tribunal they are up against time limits. Tribunal claims must be presented within a certain amount of time, known as limitation periods, typically three to six months depending on the type of claim being lodged.
When a prospective claimant notifies ACAS of their intention to make a tribunal claim, the time for lodging that claim is paused. This only resumes once early conciliation ends.
Is early conciliation confidential?
Unlike a tribunal hearing early conciliation is held in private. It is a confidential process and entirely separate from tribunal proceedings. As such, an employment tribunal will not be privy to any discussions that have taken place during the course of the early conciliation process.
If conciliation is not successful the employment tribunal is not entitled to take this fact into account in reaching their decision. Further, anything that you tell the conciliator will only be discussed with your (ex-) employee if you agree that it may be helpful in trying to resolve the workplace dispute.
Other methods of dispute resolution
As an alternative to early conciliation, other forms of dispute resolution available through ACAS include arbitration and mediation.
Mediation involves structured negotiations overseen by an independent third party mediator. Whilst the mediator may make formal recommendations, a binding decision will not be made. This is often used for disputes with existing employees where it is important to restore working relationships.
Arbitration, on the other hand, is a form of dispute resolution where an independent adjudicator hears argument and reaches a binding decision. Arbitration differs from conciliation in that both parties agree beforehand to allow a third party to decide the result of a dispute and make an award if necessary.
Seeking legal advice for early conciliation
The legalities involved in any employee dispute can often be complex, with potentially far-reaching consequences for you and your business.
Seeking early advice from an experienced employment law specialist can help you to gain a better understanding of your legal position and explore the most suitable options, including early conciliation, for resolving any workplace dispute. In this way you may avoid the time and expense of employment tribunal proceedings. You may also want to consider legal representation for the early conciliation process itself.
In the event that tribunal proceedings are inevitable, professional legal advice and representation may be crucial in successfully defending any claim against you. Your specialist employment lawyer can also advise as to best practice, policies and procedures to help avoid any further workplace disputes in the future.