Who are ACAS and why do they matter?

The Advisory Conciliation and Advisory Service (ACAS) holds a unique role in UK law. ACAS are an independent body who receive funding from the Government. Their stated aims are to offer free and impartial advice to employees, employers and their representatives on employment rights, best practice and policies and resolving workplace conflict. Aside from offering conciliation and advisory services, they also provide the non-statutory Code of Practice on Disciplinary and Grievances (the Code). The Code, whilst non-statutory, should be followed in all disciplinary and grievance matters. You can go over and above the Code but must meet it as a minimum.

Failure to follow the ACAS code can be costly.

Employment tribunals have teeth if you don’t comply with the Code. They can, and do, uplift awards by 25% if the Code hasn’t been followed. A recent Employment Appeal Tribunal (EAT) also held that a 25% uplift could equally be applied to any compensation awards for injury to feelings and aggravated damages. So employers beware, if the Employment Tribunal finds that you unreasonably failed to follow the Code in respect of any disciplinaries or grievances, it can be costly.

Changing terms and conditions of employment: avoid ‘fire and rehire’

Aside from matters of discipline and grievance, ACAS has published new guidance to help employers avoid fire and rehire practices when it comes to changing terms and conditions of employment. The ACAS Chief Executive stated in the guidance that fire and rehire practices are an ‘extreme step.’ This practice is a risky way of achieving a change in employee’s terms and conditions and should be used with extreme caution. Any change to terms and conditions should be consulted on so bear this in mind when determining timelines.

The ACAS guidance also highlights that there are important, additional considerations if employers are considering changing terms following a TUPE transfer. We would always recommend seeking legal advice before making changes to terms and conditions of employment following a TUPE transfer.

ACAS Conciliation

When an employee is considering raising a claim with the ET, they should go via ACAS first. Employees are advised to exhaust internal processes before going to ACAS but they don’t have to. Normally a claim should be made within 3 months less 1 day. If an employee contacts ACAS for early conciliation, the time taken to undertake conciliation is added on to the deadline to make a claim with the ET. Employers can also request conciliation but in this case, no time is added to the ET claim deadline.

Early conciliation is often a better more cost effective way of resolving employee issues. The conciliator will help both sides understand the merit of their claims and will seek to bring a resolution. However, if it fails, or the respondent fails to engage, this does not stop the employee bringing a claim at ET. The employee will be given a certificate that will allow a claim to be made with the ET using the ET1 form.

If conciliation is successful, a form called a COT3 will be signed by both parties. This forms a legally binding end to the process.