Key points

  • The role of the Advisory, Conciliation & Arbitration Service (ACAS) is to provide an independent and impartial service to prevent and resolve disputes between employers and employees. Conciliation officers appointed by ACAS have a statutory duty to promote settlements of complaints arising out of a breach (or alleged breach) of an employee's rights under contemporary employment and industrial relations legislation which are or could be the subject of proceedings before the employment tribunals (per Part IV, Chapter IV of the Trade Union & Labour Relations (Consolidation) Act 1992 and sections 18 and 19 of the Employment Tribunals Act 1996).

  • If there is a dispute between an employer and an employee concerning an alleged infringement of one or other of the employee's statutory rights (including his or her right not to be unfairly dismissed), either party to that dispute may request a conciliation officer to make his (or her) services available to them. It is a conciliation officer 's duty to endeavour to promote a settlement - before the employee decides to take the matter further by presenting a complaint to an employment tribunal (section 18(2), Employment Tribunals Act 1996). If an employee has already complained to an employment tribunal, a copy of his (or her) 'originating application' (Form ITI) plus a copy of his employer's (or former employer's) response (Form IT3) to that application, will be sent automatically to the appropriate regional office of ACAS. A conciliation officer will then contact both parties offering to help settle the 'dispute' between them. However, he cannot proceed further unless both parties accept that offer of help. But see Future developments at the end of this section.

  • It is not the function of conciliation officers to comment on the merits or otherwise of an employee's complaint (or to attempt to persuade an employee to withdraw that complaint). Their role is to help the parties establish the facts and clarify their views, without allowing their own views to intrude. In short, a conciliation officer is neither an arbitrator nor an investigator. Nor is anything said to a conciliation officer in the course of discussions admissible as evidence in proceedings before an employment tribunal.

COT 3 agreements

  • If a conciliation officer succeeds in promoting an 'out-of-court' settlement, details of the settlement will be recorded on form COT 3 (signed by both parties). Once this is done, the employee cannot then change his (or her) mind and press ahead with the original complaint (see Moore v Dupont Furniture Products Limited [1980] IRLR 158 (CA)). Each party keeps a copy of form COT 3. A third copy is sent to the Central Office of the Employment Tribunals which will register the complaint as having been settled by conciliation. Another (relatively new) form of binding agreement reached without the intervention of a conciliation officer - is the so-called 'compromise agreement' (discussed in the previous section).

General

  • If an employer fails to honour the terms of a COT 3 settlement, the employee may apply to the county court for an order enforcing compliance.

  • If an out-of-court settlement is reached without the intervention of a conciliation officer (and there has been no 'compromise agreement'), the employee is free to change his (or her) mind and can insist on having his complaint heard by an employment tribunal - regardless of how the settlement was framed.

  • Nothing communicated to a conciliation officer during his (or her) attempts to promote a settlement is admissible in evidence before an employment tribunal - unless the party concerned gives his express consent.

Complaints of unfair dismissal

  • If an employee has presented a complaint of unfair dismissal to an employment tribunal, the conciliation officer's first duty is to explore the possibility of reinstatement or re-engagement. If this is impracticable or unacceptable (usually because the relationship between the parties has soured), he (or she) will invite the parties to consider the question of compensation. Although conciliation officers are free to explain the formulae used by employment tribunals to calculate awards of compensation for unfair dismissal, it is not their function to recommend an appropriate amount.


    Note

    A conciliation officer will intervene on a complaint of unfair dismissal if satisfied either that a dismissal (including an alleged 'constructive' dismissal) has actually occurred or that the employee has either been dismissed or has resigned but is still serving out his (or her) notice period.

Dismissal for asserting a statutory right

  • A conciliation officer may also intervene when an employee claims that he (or she) was dismissed for having challenged his employer 's infringement of one or other of his statutory employment rights or for having referred the alleged infringement to an employment tribunal (section 104, Employment Rights Act 1996).

    At the request of both parties (if a complaint has already been presented) or of either party (if there has not yet been a formal complaint), a conciliation officer is duty-bound to try to settle such a dispute before it proceeds to a full tribunal hearing. A conciliation officer will not take the initiative in such cases unless he (or she) believes that he has a reasonable prospect of success.


    Note

    The Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 and the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 were made by the Lord Chancellor and the Lord Advocate, respectively, under the then section 131 of the Employment Protection (Consolidation) Act 1978 (now section 3 of the Employment Tribunals Act 1996). The orders, which came into force on 12 July 1994, enable the employment tribunals to hear all breach of employment contract disputes that arise (or remain unresolved) at the end of an employee's period of employment - except for claims relating to personal injury, intellectual property, tied accommodation, obligations of confidence, and covenant e, which latter remain outside the tribunals' jurisdiction.

Future developments

  • As is pointed out in the Explanatory Notes accompanying the Employment Act 2002, the duty of ACAS (through its conciliation officers) is to continue to seek a conciliated settlement between an employer and an employee for so long as the two parties to the dispute want to carry on. This can sometimes lead to an ACAS-brokered agreement being reached at the very last moment - before an employee's complaint comes before an employment tribunal - 'the result', say the Notes, of the parties being unwilling to focus on the importance of agreement until the reality of the tribunal hearing is upon them. But delayed settlements 'cost time and resource to the parties involved, to ACAS, and to the tribunal services. The objective, therefore, is to introduce a system that encourages earlier conciliated settlement where this is possible, without preventing last minute settlements if there is good reason for them'.

  • To that end, section 24 of the 2002 Act establishes a fixed period of conciliation for claims to an employment tribunal. Once section 24 is brought into force (possibly in the second half of 2003), section 7 of the Employment Tribunals Act 1996 will be amended by regulations to enable the postponment of the fixing of a time and place for a tribunal hearing in order for the proceedings to be settled through conciliation. Regulations will set out the length of the conciliation period and will provide for its extension only in cases where the conciliation officer considers that settlement within a short additional time frame is very likely. Once the conciliation period is over, it will be for a conciliation officer (and he or she alone) to judge whether to continue to conciliate the case or to pass it back to the Employment Tribunal Service so that a time and place can be fixed for a hearing.

0 comments