ACAS conciliation extended: is it good to talk?

For over 10 years prospective Employment Tribunal claimants have been required to notify ACAS of their potential claims and, after a (initially 4 and now) 6 week conciliation period,  receive a conciliation certificate before they can lodge them with the Tribunal.   The noble idea behind this requirement was to give the parties to a potential claim the opportunity to resolve it before litigation started, with ACAS performing a valuable role as a go-between, explaining the benefits of settlement and ensuring that each party understood the other's perspective on the potential claim. 

Sadly, the reality is now rather different.   ACAS has for some time been struggling with the volume of cases it deals with, so that in many cases the 6 week period expires before ACAS has even made contact with both parties.   We've heard that some ACAS offices won't appoint an individual ACAS officer to deal with a case unless the parties are close to settlement already.   As a result,  ACAS early conciliation often does little to improve the chances of settlement or ease the backlog of Tribunal claims. 

No doubt with this in mind, the Government has issued new regulations which will extend the length of the conciliation period from the current 6 weeks to 12 weeks with effect from 1 December.   In theory, this could give parties more time to reach a resolution before the conciliation certificate is issued and the clock again starts running for the Claimant to lodge their claim. However, it seems more likely that this will simply elongate the litigation process (as the limitation periods for bringing claims are extended in certain circumstances by the Early Conciliation period), unless ACAS is given additional resources to conciliate claims more actively.   Given the pressures on the Chancellor as she prepares to deliver the Autumn Budget, this seems to be a very unlikely prospect.

The Government has indicated that the extension may be a temporary measure but, under the Employment Rights Bill, the proposals to increase the primary time limit to bring almost all types of claims in the employment tribunals from three to six months and the other proposals (including Day 1 rights) are likely to increase rather than decrease the number of Tribunal claims.  The pressures on ACAS aren't going away.   

Employers should ensure that, if they do receive contact from ACAS about a potential claim, they are able to respond promptly, to maximise the chances of swift resolution if that's their desired outcome.   However, employers should not rely on ACAS to resolve disputes - early engagement direct with employees or their representatives is a more reliable route, given the constraints that ACAS is operating under.  Pre-termination and without prejudice negotiations need to be handled carefully in order to avoid exposing the business to legal risk, but they are usually more effective than reliance on a struggling conciliation system.