THE BEAUTY OF SETTLEMENT
This government does not want you to bring a claim at the Employment Tribunal. Its thinking is
A It wants to reduce the amount of money spent on the Tribunal system
B It wants to reduce the disruption caused to business by Emplyment Tribunal claims.
It has therefore introduced several measures designed to make it more difficult for employees to bring claims.
This is the thinking behind the introduction of fees and the increase in the period of time you need to work in order to bring a claim for unfair dismissal (up from one year to two years).
The latest measure is compulsory Early Conciliation conducted by the Arbitration and Conciliation Service (ACAS).
What this means is that ,before someone can issue proceedings ,at the employment tribunal,they have to make an application for Early Conciliation to ACAS.
Once an application is made an ACAS conciliator will be assigned . The conciliator will then attempt to speak to the person making the claim to see if they are willing to take part in conciliation.
If the person making the claim has a legal representative then the conciliator will contact that representative.
We would strongly advise anyone making a claim to make sure that they have appointed a Legal Representation at this stage.
This is because,if the person making a claim agrees then a conciliator can attempt to settle the dispute between employer and employee.
A legal representative will be able to advise on how good or bad a settlement offer is.
In many cases ,through a process of negotiation,,a Legal representative may be able to negotiate a better deal whether that be by way of
1) Higher financial compensation And/or
2) A better reference enabling a person to successfully apply for jobs and to move on with both their career and life.
The role of a Conciliator is similar to that of a Mediator in that
1 The Conciliator is neutral and does not take sides.
2 What the claimant discusses with the Conciliator cannot be discussed with the employer unless the claimant gives his or her consent. The same is true in relation to discussions between the Employer and the Conciiliator.
3 Discussions between the conciliator and both the employer and the employee are without prejudice.
What this means is that the contents of any discussions or conversations cannot be used in any proceedings in the event that settlement is not reached by means of conciliation.
4 There is no pressure on either the employer or the employee to come to an agreement
The affect of making an application for early conciliation is that the time limit for filing an application at the tribunal is frozen for a period of up to a month whilst the conciliation takes place.This period can be extended by another 14 days if both the Claimant and Employer are in agreement.
If agreement is reached following conciliation then ACAS will draw up a COT3 document containing the terms of the agreement between employer and employee.
This is a binding legal document .
If agreement cannot be reached ,if a party does not agree to conciliation or if ACAS cannot contact a claimant then ACAS will issue a reference number which must be quoted in any claim to the employment tribunal .
The conciliation process ,offered by ACAS,is free of charge to both employer and employee .
We can see many merits in agreeing to conciliation.
1 It avoids payment of court fees if agreement is reached.
2 It avoids the financial risks in issuing proceedings at the Employment Tribunal. Even if an employee is successful then ,under normal circumstances,an employee is unlikely to be in a position to claim their legal costs back from their former employer.
3It avoids the stress and uncertainty of the court process
4 It allows an employee to move on with their life.
5 Both employer and employee remain in control of the settlement reached .This is preferable to an Employment Tribunal Judge imposing a judgement which may be unacceptable to both employer and Employee.
The main point against this system is that the process of conciliation might come at the wrong time . The wounds between employer and employee might still be raw and prevent them from coming to a solution .
It is better still if employer and employee can sit down together and settle their differences before they result in someone leaving their job..
This is where mediation can be a more useful tool .
A mediator behaves in the same way as a conciliator. The difference is that the mediator,employer and employee would be in the same place at the same time. The mediator,after a first joint meeting with employer and employee,would then meet with each of them separately ,in turn,until everyone reached a point where they could all chat in the same room together. The mediator would then assist employer and employee in coming to an agreement which they both could live with. In all cases this is preferable to an Employment Tribunal Judge imposing their judgement on both employer and employee The government, and ourselves, are therefore agreed that conciliation and mediation are better solutions than taking a matter to a tribunal where the eventual outcome is uncertain. However we do so for different reasons.
Sundeep Bhatia is an Accredited Mediator Trained by the Centre of Effective Dispute Resolution. He is also a member of The Employment Law Committee of The Law Society of England and Wales.