The recent trend in employment law, promoted by the Government through initiatives such as the introduction of the statutory dispute resolution procedures, has been to ensure that employers and employees make all possible efforts to resolve any dispute within the workplace and outside the employment tribunal. In this column, we have previously considered the role that mediation may have to play in resolving such disputes. Here, that theme is explored further, by focusing on the free conciliation services provided by the Advisory, Conciliation and Arbitration Service (ACAS) and what the future may hold for ACAS after the forthcoming repeal of the statutory dispute resolution procedures.
What is conciliation and how does it work?
ACAS officers have a statutory duty to promote settlement of claims issued in the employment tribunal. They are notified of every claim that is received by the tribunal where conciliation is applicable and then liaise between the parties, reporting any proposals for settlement, advising the parties on tribunal procedure and encouraging them to consider how the other side views their case. This process often succeeds in focusing the parties’ minds on the strengths and weaknesses of their respective cases and may be particularly helpful where one or both parties are not legally represented.
Any discussions conducted through ACAS are confidential and cannot be referred to in a tribunal hearing unless the person making the communication consents. If agreement is reached through this process, the terms of the settlement are formalised in a legally binding “COT3” agreement that records the terms of settlement.
Are there any restrictions on using ACAS?
ACAS can be involved both before and after a claim is submitted. In some types of claim, conciliation is available for a limited period only, after a claim is lodged. For example, the conciliation period for a breach of contract claim is 7 weeks and is 13 weeks for unfair dismissal. ACAS officers may choose to use their discretion to conciliate after this date, although it is best practice to involve ACAS from an early stage as discussions may become protracted.
Conciliation through ACAS is not available for every type of claim. For example, claims in relation to the provision of written particulars of the terms of employment are not covered.
What is the alternative to using ACAS’ conciliation services?
The parties to a dispute are free to negotiate a settlement directly with each other, or through their representatives, without the involvement of ACAS. This may be appropriate where, for example, the conciliation period has expired or the terms of the proposed settlement require a more detailed agreement than can be concluded under a COT3. In addition, the parties may pursue other forms of “alternative dispute resolution” such as mediation or arbitration.
What is the future for ACAS?
The Employment Act 2008 abolished the statutory dispute and grievance procedures from 6 April 2009. Readers of this column will know that these procedures have been replaced by a revised version of the ACAS Code of Practice and accompanying guidance. ACAS has been granted additional funding to expand its services and is extending its helpline and pre-claim conciliation service to assist parties in resolving disputes earlier. Fixed conciliation periods have been repealed on 6 April 2009 when the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008 come into force and ACAS will then be under a duty to conciliate throughout the proceedings.