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Conciliation and mediation

Employers and employees are encouraged to try and resolve their disputes outside of the tribunal forum. This is illustrated well by the introduction in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 of the overriding objective that tribunals and the parties must deal with cases justly. The regulations specifically state that this includes:
  • ensuring that the parties are on an equal footing
  • dealing with cases proportionately to the complexity of the issues
  • ensuring the case is dealt with expeditiously and fairly; and as far as possible with a view to saving expense.
A consequence of the parties' duty to ensure that the overriding objective is observed is that the parties must consider whether the case would be suitable to be resolved by a process of alternative dispute resolution.
Anyone who wishes to issue a claim at the employment tribunal has to at least partially engage with the early conciliation process provided by Acas.

Key points

  • Claims must be registered with the Acas early conciliation process in the first instance. Conciliation remains available throughout the lifecycle of the tribunal claim also.
  • The Acas Arbitration Scheme can be used where tribunal proceedings relate either to an unfair dismissal claim that does not involve any complex issues of law or to a complaint concerning a flexible working request.
  • Where the parties come to an agreement, a legally binding agreement recording the terms that meets the conditions set out in Section 203(3) of the Employment Rights Act should be completed.
  • If the parties do not wish to involve Acas, a settlement agreement enables the employer to obtain a more extensive waiver of the right of the employee to bring potential statutory claims.
  • Mediation is a non-evaluative process where an independent neutral party assists the parties towards understanding the other's perspective and through this facilitates possible solutions to the dispute.

Recent developments

Extension of conciliation period

From 1 December 2020, the automatic time-period allowed for early conciliation increased from one month to six weeks. There is now no longer an option for this to be extended past the six-week mark. 

New legislation to clarify disclosure limits in confidentiality clauses

Following a consultation carried out in 2019, the government has confirmed new legislation will be introduced to ensure confidentiality clauses used in settlement agreements do not purport to prevent individuals from making disclosures to the police, regulated health and care professionals, or legal professionals.

Further requirements will also be introduced, including ensuring the limits on confidentiality are clearly set out in plain English and extending the independent legal advice required before the agreement is entered into to cover the nature and limitations of confidentiality clauses.

Enforcement powers will also be introduced, with it being stated that confidentiality clauses in settlement agreements which do not comply with the new requirements will be legally void.

An implementation date for the new legislation has not yet been confirmed. More information can be found in our news article.