ACAS early conciliation

[blade81]

Hi.

A friend is currently going through early conciliation with their employer via ACAS and has been advised that she needs to give the employer a settlement amount. I thought the employer was meant to make the offer and they would then work from there. This is what it also implies in the ACAS guide. However ACAS have said as the employer doesn’t think they have done anything wrong and and want my Friend to return to work so it’s upto to her to say how much she wants and her terms. She asked for an apology, a reference, a financial amount based on loss of earnings, future loss of earnings and injury to feelings. This is quite a high 5 figure amount but inline with the vento scale.

I wanted to check that the employee should be the one saying the compensation amount and terms? Also once a settlement is in writing the employer ships pay for the employee to get independent legal advice.

Thanks

nikki

[ULA]

As part of the early conciliation (EC) process ACAS need to be able to discuss any proposals either party has with the other to try and gain a resolution. As part of that process if they feel that it may help the dialogue between the two parties to understand what your friend is looking for in terms of a financial settlement then they need to explore it.

It seems like the employer has already made their position clear in that they are not admitting any wrongdoing and want your friend to return that is there stance and your friend is looking to leave with a financial settlement, reference and an apology. It would be different if the company at this stage was open to a financial settlement then yes finding out what “ball-park” they are in would be the right course of action but they are not. A financial settlement is what your friend is looking for so to give an indication to the company of what that is may unlock the apparent deadlock. What the company will need to weigh up at this stage is the cost in terms of their management time, legal fees etc to potentially fight a case at an ET versus what your friend is looking for. As harsh as this sounds in these situations it can become a commercial decision for companies whether to continue to defend a claim even if they believe they have a solid case.

In any event if early conciliation does not work your friend will have to declare what she is looking for in terms of settlement on her ET1, and there is then the potential for a period of conciliation once it has been submitted.

If agreement is reached via EC then the terms will be agreed via a COT3. Unlike a Settlement Agreement, which is drawn up between an employer and employer not as a result of EC, there is no requirement for your friend to obtain independent legal advice for the COT3 to be binding and therefore no requirement for the employer to make a contribution towards legal fees for an independent legal advisor to review the document. However, the conciliation officer should explain the terms of the COT3 and their effect.

[blade81]

Hi Ula,

Thanks for your response ACAS have informed her that the employer wants to arrange an exit package and for my friend to come up with a figure then when she spoke to ACAS yesterday to say she’s getting legal advice and asked for them to make an offer the advisor at ACAS said they want her to return to work so she needs to come up with the figure. The thing is they’ve made her position untenable to return with the personal comments several staff have made during the grievance process which went unchallenged eg my friend has problems of her own and it’s been better whilst she’s been off and her line manager saying he felt he let her down but now doesn’t think he had because of the grievance. The employer has admitted a staff member made a direct racism comment and that HR failed to investigate the complaint as per the Equality act as the HR person felt that the comment was lighthearted they didn’t even interview the person that made the comment. They are all friends you see.

Thanks

nikki

[ULA]

Always a difficult situation when individuals are all friends and sometimes the need to deal with a situation, particularly a grievance, in a professional and robust manner gets overlooked as a consequence.

If your friend believes that to return to work is out of the question then it would be a good idea, if she has not already done so, to details these reasons then she will have then available to defend her decision not to accept the company's offer to return to work.

[blade81]

Hi thank you for advice.

can I check is it compulsory for a grievance hearing be held for the results of an grievance. My friend submitted a grievance see above and was interviewed then received the outcome in writing no grievance hearing. The independent HR consultant hired to do the investigation emailed my friend instead of HR saying that she thought a grievance hearing was going to be held.

Thanks

nikki

[ULA]

When your friend was interviewed after submitting the grievance was she formally advised of the meeting given notification of time/location who would be attending and was she given the right to be accompanied?

If not then in my opinion she has not had a grievance hearing against which a determination can be made.

[blade81]

Hi Ula thanks your response they referred to it as a grievance meeting did say she can bring a union representative however the main purpose of the meeting was to investigate what happened the HR consultant emailed my friend by mistake after the employer issued the reccomended actions stating that she thought there would be a grievance hearing before anything was issued as she only carried out the investigation. If the person chairing the meeting didn’t think it was a hearing I’m assuming the employer has followed correct procedure and that it would be fair to raise with them.

The invite stated the purpose of the meeting is to enable you to exaplain the grievance and how you want it to be resolved. To assist HR consultant to reach a decision based on the representations and evidence presented. It was really a q&a session.

[ULA]

Ok so it sounds like they have followed the correct process, it was termed a grievance meeting, that it was for her to explain the grievance and how she wanted it to be resolved and she was given the right to be accompanied. So it was clear what the purpose of the meeting was and what your friend needed to cover in the meeting. Given that was the clearly stated purpose of the meeting then unless she raised something in the meeting that needed time/adjournment to clarify or further investigate then there would be no need for a further meeting and the next correspondence would be a letter detailing the outcome of the grievance and the right to appeal that outcome.

[blade81]

Thank you is that the case if the person chairing the meeting thought it was an investigation meeting and not the hearing itself. The person has stated this in an email.

[ULA]

In my experience there is very rarely an investigation meeting in advance of a grievance meeting. An employee raises a grievance in writing, the response is for the company to arrange a meeting to hear the grievance and understand the detail of the grievance plus ascertain an understanding of how the employee would like the situation resolved. If during that meeting something is evidenced or said that the person/people hearing the grievance need to clarify or investigate further then the grievance meeting is adjourned for that to happen and then reconvened.

In my view the chair of the meeting should have had all correspondence in advance of the meeting i.e. the grievance letter from your friend and the letter inviting her to the meeting so should have been fully aware that is was the grievance meeting.