The Advisory, Conciliation and Arbitration Service (ACAS) is “an independent public body that receives funding from the government” and the first thing to note is that ACAS, in a dispute, is not primarily concerned with either justice or the law. I’m not being critical of them. My experience has been almost completely positive. However an adviser will tell you that their function is what’s on the tin. Let’s go through the title and try and understand it better:
- Advisory – this doesn’t mean giving specific legal advice in the way that a solicitor may do – though they do advise generally on “employment law, HR processes and good practice at work” but rather informing the Parties (the Claimant and the Respondent) about ACAS and Employment Tribunal procedures. (You may see the Claimant referred to as the Complainant or the Plaintiff but let’s keep things simple.)
- Conciliation – this is basically about trying to broker a voluntary agreement. The ACAS agent goes between one Party and the other noting what they agree on, noting what they disagree on, and facilitating their communication in a professional manner.
- Arbitration – this differs from conciliation in terms of when the Parties are legally bound by the Agreement.
- Service – ACAS is there to help both parties in an impartial manner and also helps to keep the justice system moving along and to avoid a backlog of cases that really don’t need to go to court.
In conciliation, only when both parties accept the Agreement – in terms of both content and wording – does it become binding; in arbitration, the Parties voluntarily agreed to accept the decision of the Arbitrator (who may or may not be an employment judge) and no Party can subsequently reject the Decision.
Using ACAS, for either Party, is free.
If you’ve watched any trashy American legal shows, you’ll know that the way you win in court (after you’ve somehow managed to make yourself look respectable after a hot night of sushi and sex on the Senior Partner’s walnut desk with the New Hire) is to strut up and down the front of the jury, throwing accusations and your hair around, to distract Opposing Counsel from your anxious glances at the courtroom door. Then just as the gavel is about to go down, in rushes your anxious Associate (either the Schmuck or the New Hire will do for this role) spilling closely-typed documents from a huge pile of folders from which you are able to deftly extract the one piece of paper that proves beyond a doubt that when Grampa Beaverhat sold the saw mill in 1862 that corner of Willow Creek was actually under the state law of Nebraska! Or whatever. It helps if you bang these folders down in a decisive manner and of course you must have copies of said document which you just throw at Opposing Counsel and wave under the nose of the judge – who is amazed. Cue the cameras on the courtroom steps, more hair waving, and (if the New Hire has anything to do with it) you’re not going to get much sleep that night either.
Well it doesn’t really work that way in the UK. For a start we don’t do walk and talk. In fact, at an Employment Tribunal, apparently everyone is sat down the whole time ( I don’t know for sure because my 6 court days are in December). As for last-minute Discovery (as the Americans call it; we call it the Bundle) I’m fairly sure this would be frowned upon. And you don’t want to be doing anything that gets frowned upon. Not with British judges. Of course, at an Employment Tribunal, the other two members of the panel of three are unlikely to be judges. And there’s no gavel.
But I’m getting ahead of myself because the point of ACAS in a dispute is to help Parties resolve the matter before it gets to court. So how do you start the process?
As my dear mother always say, “when all else fails, read the instructions” (quoting the title of a 1938 book on the Bible by James Wendell Moore, apparently) and the ACAS Codes of Practice are very useful, for parties to check whether they’ve followed them or not, as this may establish reasonableness. (There’s also a helpline.)
The mechanics of making a claim are explained clearly on the ACAS website and whether you contact them by phone or their online form first, you don’t have to have all of the necessary information on hand immediately.
The procedures have changed in the last few years and now you should inform ACAS first, before making an Employment Tribunal claim. The advice of the ACAS agent is likely to be that if you’ve exhausted the internal procedures of your workplace (informal and formal discussions, including perhaps grievance procedures) and want to go ahead with a claim, then you’ll have to fill in a COT1 form.
In my limited experience of bringing a claim, success doesn’t depend upon drama but upon adherence to procedures. That doesn’t sound very sexy but it’s the best advice you’ll get from me – and the first part of that is to pay heed to this:
There are strict time limits for making a claim to an employment tribunal. In most cases, you have 3 months minus 1 day from the date the problem at work happened.
https://www.acas.org.uk/early-conciliation/how-early-conciliation-works
So in this blog post I’ve mostly told you to go and read the ACAS website. I’ll finish by giving you my experience of this service.
In my view, the only thing I did “wrong” was to robust reflect back to my employer exactly the legal advice that they had taught me in compulsory HR modules for staff. Although my reflections were mostly accepted, one senior academic took exception to what I since realised to be a Protected Disclosure for which the Public Interest Disclosure Act 1998 provides. So I see subsequent events as a sustained and vindictive campaign of victimisation, ending in my Wrongful and Unfair Dismissal – which is also Automatically Unfair as it followed the making of a PD, also known as whistleblowing. Therefore, although I willingly entered into HR procedures – including investigation of the Grievance raised against me and the one I raised against said academic – eventually I got really tired of facing senior academics and HR staff across the table when it was clear to me that their hostility had previously been recruited by others and was based entirely on prejudice.
Therefore it was a great relief to me to be able to email and speak on the telephone to an ACAS agent who was affable, a good listener, and frankly didn’t give a damn whether I or the other Party won. This indifference is a good thing. You don’t only want it at the ACAS stage but also when you get to the Tribunal. No member of the panel should walk in the court room with their mind already made up. So anything you can do to appear reasonable is in your favour. My point is that being abused and dismissed at work is a very emotionally bruising experience and can provoke some deep feelings. The ACAS agents are quite used to listening to people who are aggrieved and can relate their points to the other Party in a more neutral and dispassionate tone. This is very helpful.
At the moment (and I’m not going to give you the ins and outs because the process is confidential) we haven’t reached an agreement through ACAS but that is still possible, even when the case is heard at court, right up to the moment of the Panel’s Decision.
We have just under three months to go. Let’s see what happens. I’ll keep you posted. Next time I want to talk about Preliminary Hearings and Judicial Mediation.
(This post is part of a series)
Thanks to Mohamed Mahmoud Hassan for releasing his image Lady Justice Silhouette into the Public Domain.
alchemicalquality 
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