Too much for ACAS?

Two specific proposed changes will mean a great deal of extra involvement for ACAS but will an overstretched organisation be able to cope and will the plans really mean a better process? We have set out the key principles of these proposals below.

Pre-termination Negotiation

Last year the Government mooted a proposal for what was going to be called “Compensated no – fault dismissals”, aimed at encouraging early settlement. The concept was binned but the Enterprise and Regulatory Reform Bill (the Bill) contains details of the idea where Tribunals will not be able to consider one “Pre-termination negotiation” when considering the fairness of a dismissal.

This means that employers could sit down with an employee who they are looking to dismiss, raise a performance or capability issue and include within that discussion a proposal to end their employment on negotiated terms. This conversation would then be protected and would not be able to be used as evidence that a subsequent dismissal was predetermined, regardless of procedural obligations in any later unfair dismissal proceedings.

The reality of this proposal is that employers who are looking to resolve a difficult situation are likely to be able to have a bit more of a frank discussion with their employee however, employers must still tread with some caution particularly as the way that the Bill is currently drafted would mean that the details of the proposal to end employment and the terms negotiated are only inadmissible in ordinary unfair dismissal proceedings. The fact and content of the offer or discussion may be referred to in relation to other claims such as automatic unfair dismissal, breach of contract or discrimination.

Employers must also be aware that they must not place “undue pressure” on the employee and that they will not receive any protection where it is considered that the employer’s behavior has been “improper”. The difficulty with the way in which it is currently worded is that there is no definitive explanation of what improper behaviour would be although it is going to be defined in a further ACAS publication although further consultation is currently still underway in this regard. Employers should be aware however that the expected change is due to come in to force in the summer.

Greater ACAS involvement pre issue?

The Government intends to introduce a requirement for most types of potential Tribunal claims to be lodged initially with ACAS who will then offer the parties an opportunity to engage in early conciliation with a view to relieving some of the claims going to the Employment Tribunal.

There will be no obligation to actually accept the offer of early conciliation and the requirement is merely to contact ACAS rather than to actually partake in pre-claim conciliation.

In January 2013 the Government issued its consultation on how the process would operate in practice and it closed on the 15th February. Under the proposed two stage process, the way that it would work is that there would be an early conciliation support officer who would make “reasonable efforts” to contact a Claimant, obtain basic information and outline the conciliation process. ACAS would then issue a certificate confirming the Claimant complied with their duty to contact ACAS even if they did not wish to participate in conciliation. The claim would then be able to be presented to the Tribunal.

If the proposed Claimant did wish to participate in early conciliation then the matter would be passed to a conciliator who would contact both the parties. If it was the employer who did not wish to participate then the compliance certificate would immediately be issued and a claim lodged at Tribunal.

If the employer did agree to conciliation then there would be a period of up to 1 month to facilitate a settlement. It is not clear what would happen in the event that a Claimant lodged tribunal proceedings immediately perhaps due to the approaching expiry of a time limit.

Despite ACAS being asked to write definitions and become more active, there will be no additional funding. As anyone with previous experience of ACAS knows, they are already overstretched and so it is impossible to see how they will deal with further increases in workload.