You have likely heard of Acas before, but do you know its function in an employment dispute? You may not be aware that Acas is the creator of the codes of practice which all employers should follow in conducting a disciplinary or grievance. If they do not, they can face an increase of up to 25% on any awards against them in the tribunal.
What is Acas?
Acas is the Advisory, Conciliation and Arbitration Service. In summary, Acas gives employees and employers free, impartial advice on workplace rights as well as rules and best practices that must be followed. They also offer training and help to resolve workplace/employment disputes, playing an integral part within employment law and the protection of both employees and employers. But their most important role is early conciliation.
What is Early Conciliation?
Acas’ early conciliation service is a mandatory first step in any Tribunal claim. When the conciliation period is over, Acas issues an “early conciliation certificate” and without this, an employee (or “claimant”) is typically unable to pursue a Tribunal claim.
Whilst the matter is with Acas, an independent Acas conciliator will be assigned to a case. This conciliator then acts effectively as a mediator, trying to see if the matter can be resolved before the matter is escalated to Tribunal. The conciliator will make no judgments or assessments of the case, but will effectively communicate both parties’ perspectives to the other, to see if a resolution can be reached.
The reason this service is helpful is because making a claim to the Tribunal can be rather expensive, time-consuming (especially considering the delays resulting from Covid-19) as well as a stressful and difficult process for all parties involved. Therefore, the ultimate aim of this service is to resolve employment claims without needing to escalate this onto an Employment Tribunal. We have discussed more on this point and the benefits of settling a case in our separate blog here.
How does this impact time limits?
To have a valid claim, in time, Acas early conciliation must be initiated within three months less one day of the dismissal date or the last act of discrimination occurring. Failure to approach Acas within this time will likely mean the claim is out of time and the Tribunal will not have jurisdiction to hear it.
Early conciliation effectively “stops the clock” on the deadline. EC typically lasts up to six weeks (but may be terminated at any point within this period), although in practicality the first week with Acas is usually spent being allocated to a conciliator as the free service is currently inundated with claims there is a huge backlog at the moment. As soon as this period ends, or earlier if the matter is terminated, a certificate will be issued.
The certificate set out three important pieces of information:
- The date ACAS was notified
- The date ACAS finished
- Certificate number (you need this to issue the claims)
After a certificate has been issued, the deadline to approach the Tribunal is the later of:
- the time for which the matter was with Acas plus the three months less one day deadline, or
- one month after the issuing of the certificate.
Specific advice will need to be taken on the exact time limit that applies to you once the certificate has been received, as this is precise and specific and getting it wrong could mean your claim is out of time and you cannot proceed.
What if I don’t want to conciliate?
A prospective claimant has to have an Acas certificate. This is mandatory. What isn’t mandatory is for the employee or the employer to engage with the process. In practicality this can mean:
- A prospective claimant can ask Acas to immediately issue the early conciliation certificate and then use that certificate to escalate the claim in the Tribunal. The employer may never know that the matter has been with Acas, but as long as the certificate number is in the claim, this is still a valid approach.
- An employer can refuse to conciliate. They can ask that the certificate is issued. This effectively restarts the “clock” for the claimant for the purpose of the time limit.
It is extremely rare for either party to be found to be unreasonable or liable for costs in their dealings with Acas, as engaging with the conciliator is ultimately optional.
Can I refer to what’s happened when dealing with ACAS in the tribunal?
In short, it depends. In most situations you should not refer to the discussions as they are for the purposes of settlement, unless it is support of a costs application.
What happens if an agreement is reached?
If some form of resolution is secured within six weeks, including any compensation, a COT3 form will be issued by Acas.
It is important to note that, typically, if both parties agree settlement/exit package, then that employee waives their rights to bring an employment claim. An employer will also usually require that the terms of any agreement be kept confidential, as well as the circumstances surrounding the employment matter. For more of our thoughts on NDAs, read here.
How we can help
Here at Thrive, we are in contact with Acas and deal with tribunals and settlements on a daily basis. From tribunal claims to draft grievances and appeal letters. We know how daunting the legal process can be for employees, we are here to help. We will take off your case from start to finish ensuring you know exactly where you stand.
We can also support individuals by negotiating settlements agreements with your employer to get the best possible outcome for you. We provide these services whilst being completely transparent as possible with you about the legal cost.
Before commencing work on your behalf, we shall do an initial review and then inform you of any additional costs and ensure you fully understand how your legal fees are calculated, in writing, before proceeding with any case.
Whilst most firms operate on an hourly rate, we prefer to offer our clients a fixed fee (wherever possible) to assist our clients in managing their legal costs. Please get in touch at enquiries@thrivelaw.co.uk
By Uthman El-Dharrat and Alicia Collinson
Disclaimer
Please note this blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
