A. Before answering these questions, it might first be helpful to provide some background. With effect from May 6 it became compulsory that any complaint needs to be referred to ACAS in the first instance before a tribunal claim can be lodged.
The ex (or current) employee needs to contact ACAS online, by post or by phone and provide their name, address and the details of the employer involved. They are not required to provide any further details at this stage.
Next, an ACAS conciliator needs to make ‘reasonable’ attempts to contact the applicant to obtain further details and, with their consent, contact the employer. If such contact cannot be made to either party, then the conciliator concludes that settlement is not possible and a conciliation certificate is issued. The employee is then free to submit their claim to the tribunal office.
If both parties do agree to participate in conciliation and try to agree a settlement, the conciliator has up to a month to obtain this (a further 14 days can be granted in some situations). The three-month time period the employee has to bring a claim to a tribunal after their dismissal stops once the conciliation commences.
If it is not possible to achieve an agreed settlement or the conciliation period ends without agreement, a conciliation certificate will again be issued, which allows the matter to progress to tribunal and the employee then has at least four weeks from the date the certificate is issued to lodge the claim.
So what should a practice do if they receive such a call?
When entering into a period of conciliation, the employer should gather as much information as possible from the ACAS conciliator regarding the employee’s claim. This will help them see the case from both sides and understand the strengths and weaknesses of the claim.
The risk and potential costs involved should also be evaluated. Consider whether this only affects the one employee or is the situation likely to result in other employees bringing a claim. With regards to costs, ACAS conciliation is free but other options such as mediation and tribunal hearings are not and will incur fees.
At this stage, refusal to enter into conciliation or the inability to agree a settlement will enable the employee to take the matter to a tribunal.
However, the introduction of fees may put off the employee from taking the issue further. Currently it costs an employee £250 to issue a type B claim (which an unfair dismissal claim will be) and £950 for a hearing fee.
Early conciliation does allow matters to be resolved before the stress of a tribunal claim hits. Once a claim is formalised in tribunal, settlement can be more difficult.
If agreement is obtained at conciliation stage, ACAS will issue a COT3 detailing the terms of the settlement and it is important to ensure that all potential claims are settled and not just those discussed.