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Workplace Wisdoms: A settlement storm
06 Sep 2013
Categories: Workplace Wisdoms Employment & Pensions
Hello and welcome to SJ Berwin’s podcast: "A settlement storm”.
I am Hilary O’Connor, a Partner in SJ Berwin’s Employment Group.
ECSOs, EC certificates, mandatory conciliation, and stop-the-clock provisions – these terms will all be tripping
off your tongue from next April. If you haven’t heard of them yet – you soon will have! Mandatory settlement
procedures are coming to town.
I’m going to talk about:
Exactly what will be mandatory;
How it might impact you; and
Whether it will do more harm than good.
First, let’s look at exactly what will be mandatory.
A few weeks ago, the Government confirmed its intention to give people “the opportunity to resolve their
disputes without the cost and stress of going through an Employment Tribunal, with the support of ACAS”.
The Government also said that this new approach to conciliation had been “welcomed by all quarters” – but I
will leave you to make your own mind up about that!
Come April 2014, it will become compulsory for employees to contact ACAS before going any further with a
claim. There will be five basic steps:
Step 1: Before putting in a claim to the Employment Tribunal, an employee will generally have to register with
ACAS. They don’t have to tell ACAS what their claim is about – just that they are thinking about making a claim.
Step 2: Within 24 hours, ACAS will contact the employee to see if they want to discuss settlement. A new
“ECSO” (or, Early Conciliation Support Officer) will have this basic job.
Step 3: If the employee does want to discuss settlement, the ECSO will notify an ACAS officer, and the ACAS
officer contacts the employee within 48 hours.
Step 4: If the employee agrees, ACAS then contacts the employer (again within 48 hours) to see if they also
want to settle.
Step 5: The parties have a month to try to reach a settlement. If there is no settlement by this deadline, then
ACAS will issue an EC (or, Early Conciliation) certificate. This means that the employee has contacted ACAS as
they were supposed to; no settlement was reached; so the employee can now bring their claim in the Tribunal.
All in all – a pretty tight timeframe for everyone involved.
So, how might it impact you as employers.
Now remember - the duty here is being placed on employees. There’s no obligation on an employer to discuss
settlement, make a settlement offer – or even call ACAS back. The Tribunal will not know what you have, or
have not, done.
But your actions can have an impact. For example:
If the employee contacts ACAS, there are pretty complicated “stop-the-clock” provisions which kick in.
Essentially, the timeframe for the employee to submit a claim (which is normally 90 days) will stop until an
EC certificate is issued.
If you contact ACAS though and start settlement discussions, this won’t stop the clock. The employee will
still have to put their claim in within the normal 90 day period.
Potential for confusion? Without a doubt. Which leads onto my last point…
Whether this new approach will do more harm than good?
On the plus side:
Forcing employees to contact ACAS means that they will have to take stock and have a good think about
the nature and merits of their claim. Looked at alongside the new obligation on claimants to pay Tribunal
fees, there is clear potential for a drop in opportunistic claims.
Further, if they don't have a lawyer, the ACAS officer may be the only experienced person they actually
speak to about their claim.
On the down side though:
Is it really right that employees don’t have to tell ACAS any details of the claims they will be making? How
will you really know what you might be settling, or what you might be defending? This is hardly likely to
assist settlement.
One-way stop-the-clock extensions sound like a nightmare, even for those of us who are pretty good
with a calculator.
Further, settlement discussions can already be held at any stage. As we flagged in our last podcast,
we’re in the eye of a settlement storm - there is now a new rule on settlement discussions, a new ACAS
Code on settlement, and a new ACAS Guide on settlement. There’s only so much settlement talk one can
take.
And lastly, the pièce de résistance, ACAS will be able to “promote” re-instatement where the employee
has been dismissed. While it is all very vague as to what “promote” means, I am pretty sure that it won’t
be good news for employers!
We do have until April next year to make peace with all this though. And given the rate at which employment
law is changing at the moment, who knows what shape these mandatory settlement procedures will be in by
then.
We do hope you found our podcast helpful. Our Employment publications contain more detail on current
Government changes. You can access these, as well as our previous podcasts, on the Employment page of
our website.
Thank you for listening and enjoy your day.
Workplace Wisdoms: A settlement storm
06 Sep 2013
Categories: Workplace Wisdoms Employment & Pensions
Hello and welcome to SJ Berwin’s podcast: "A settlement storm”.
I am Hilary O’Connor, a Partner in SJ Berwin’s Employment Group.
ECSOs, EC certificates, mandatory conciliation, and stop-the-clock provisions – these terms will all be tripping
off your tongue from next April. If you haven’t heard of them yet – you soon will have! Mandatory settlement
procedures are coming to town.
I’m going to talk about:
Exactly what will be mandatory;
How it might impact you; and
Whether it will do more harm than good.
First, let’s look at exactly what will be mandatory.
A few weeks ago, the Government confirmed its intention to give people “the opportunity to resolve their
disputes without the cost and stress of going through an Employment Tribunal, with the support of ACAS”.
The Government also said that this new approach to conciliation had been “welcomed by all quarters” – but I
will leave you to make your own mind up about that!
Come April 2014, it will become compulsory for employees to contact ACAS before going any further with a
claim. There will be five basic steps:
Step 1: Before putting in a claim to the Employment Tribunal, an employee will generally have to register with
ACAS. They don’t have to tell ACAS what their claim is about – just that they are thinking about making a claim.
Step 2: Within 24 hours, ACAS will contact the employee to see if they want to discuss settlement. A new
“ECSO” (or, Early Conciliation Support Officer) will have this basic job.
Step 3: If the employee does want to discuss settlement, the ECSO will notify an ACAS officer, and the ACAS
officer contacts the employee within 48 hours.
Step 4: If the employee agrees, ACAS then contacts the employer (again within 48 hours) to see if they also
want to settle.
Step 5: The parties have a month to try to reach a settlement. If there is no settlement by this deadline, then
ACAS will issue an EC (or, Early Conciliation) certificate. This means that the employee has contacted ACAS as
they were supposed to; no settlement was reached; so the employee can now bring their claim in the Tribunal.
All in all – a pretty tight timeframe for everyone involved.
So, how might it impact you as employers.
Now remember - the duty here is being placed on employees. There’s no obligation on an employer to discuss
settlement, make a settlement offer – or even call ACAS back. The Tribunal will not know what you have, or
have not, done.
But your actions can have an impact. For example:
If the employee contacts ACAS, there are pretty complicated “stop-the-clock” provisions which kick in.
Essentially, the timeframe for the employee to submit a claim (which is normally 90 days) will stop until an
EC certificate is issued.
If you contact ACAS though and start settlement discussions, this won’t stop the clock. The employee will
still have to put their claim in within the normal 90 day period.
Potential for confusion? Without a doubt. Which leads onto my last point…
Whether this new approach will do more harm than good?
On the plus side:
Forcing employees to contact ACAS means that they will have to take stock and have a good think about
the nature and merits of their claim. Looked at alongside the new obligation on claimants to pay Tribunal
fees, there is clear potential for a drop in opportunistic claims.
Further, if they don't have a lawyer, the ACAS officer may be the only experienced person they actually
speak to about their claim.
On the down side though:
Is it really right that employees don’t have to tell ACAS any details of the claims they will be making? How
will you really know what you might be settling, or what you might be defending? This is hardly likely to
assist settlement.
One-way stop-the-clock extensions sound like a nightmare, even for those of us who are pretty good
with a calculator.
Further, settlement discussions can already be held at any stage. As we flagged in our last podcast,
we’re in the eye of a settlement storm - there is now a new rule on settlement discussions, a new ACAS
Code on settlement, and a new ACAS Guide on settlement. There’s only so much settlement talk one can
take.
And lastly, the pièce de résistance, ACAS will be able to “promote” re-instatement where the employee
has been dismissed. While it is all very vague as to what “promote” means, I am pretty sure that it won’t
be good news for employers!
We do have until April next year to make peace with all this though. And given the rate at which employment
law is changing at the moment, who knows what shape these mandatory settlement procedures will be in by
then.
We do hope you found our podcast helpful. Our Employment publications contain more detail on current
Government changes. You can access these, as well as our previous podcasts, on the Employment page of
our website.
Thank you for listening and enjoy your day.
