Timing is often crucial. Do you wish that you had exchanged your Icelandic individual savings account for premium bonds (now the geriatric pin-up of the savings world) earlier this year? You would be far from alone. The ability to dance on the beat can often make or break you.

This is perhaps especially true of litigation. While some continue with the traditional approach – not settling any case while the client still has breath left in him to pay the bills – others prefer a more conciliatory style in the interests of both parties, especially in the employment arena. And when it comes to conciliation, few have championed the cause like ACAS. But while ACAS has continued technically to fulfil its objectives under the Employment Tribunals Act 1996, it is hard not to see those provisions as having made ACAS increasingly invisible in recent years.

Back in the day, summers might have just seemed longer, but sightings of an ACAS officer were definitely more prevalent. This was especially of use when litigating against an unrepresented ‘claimant’ who could be more easily interrupted from the process of writing outraged but irrelevant letters to the tribunal by ACAS than by any opponent. I recall well a claimant, adamant that he had been dismissed on grounds of race, who only really took notice of the perils of litigation when ACAS pointed out to him that he had in fact admitted to having chased another employee through a factory with a knife, screaming that he would kill him. When I had pointed the same thing out to him earlier I had been met with the Mandy Rice-Davies defence – ‘well, he would say that, wouldn’t he’.

In this unique way ACAS, in its independence, has so often been able to bring parties together – but even they can only usually do so when the time is right. With some cases this will be early on, before the fees begin to bite. With others it may only arrive when a hearing date is set and the chief executive (who swore he would fight to the very death) remembers that he has a pressing meeting with his chiropodist on the date in question.

Few have questioned the importance of ACAS’s role in proceedings, so what has gone wrong and where have all the ACAS officers gone? While I have a personal concern that it is something to do with the grey squirrel and natural habitats, the most likely reason must be the combination of the reduction in staff numbers at ACAS (whose targets appear to focus on the number of tribunal days they save in any settlement) and the statutory expression of ACAS’s duty set out in the Employment Tribunals Act 1996 (as amended by the Employment Act 2002 and others).

Those sections, 18 and 19, have never been as user-friendly as they might have been. The core duty is set out in section 18(2) – that once proceedings have begun, the ACAS officer has a ‘duty’ to conciliate and promote a settlement, either if the parties request him to or if he considers he has a ‘reasonable prospect of success in settling matters and avoiding a hearing’ (which is all well and good). Section 18 then extends that obligation to deal with requests made by a party before an application has been lodged (18(3)) and to provide a specific obligation to promote re-instatement or re-engagement in respect of unfair dismissal claims whether already lodged (section 18(4)) or not (section 18(5)).

On the face of it, these provisions seem fair enough, but the confusing language of these sections (which cross-refer to each other and elsewhere so much that no layman could remain conscious if he read them) has undoubtedly caused problems and blurred the role of ACAS to many.

Therefore it is pleasing that, hidden among the more headline-grabbing sections of the new Employment Bill (for example, changes to the statutory disciplinary and grievance procedures), a little time has been taken to tidy up these sections with an increased emphasis on the duty being to endeavour to ‘promote settlement’ in cases where proceedings have yet to be lodged, and a clearer expression of what is required generally before an unfair dismissal case has been commenced. But is that tidbit enough to tempt the ACAS officers back out?

Well no, but thankfully it has not stopped there, for the Employment Bill has also taken time to deal with the much greater irritants set out in subsection 2(A) of section 18 and subsection 2 of section 19, which are now thankfully to be repealed.

These subsections were oddly billed as aiding conciliation by putting pressure on parties to settle during the pre-ordained ‘conciliation periods’ (either seven or 13 weeks, depending upon the claim) set out in the Employment Tribunal Regulations 2004. In many cases, they have simply led to the untimely disappearance of the ACAS officer at the end of that period and a reduction in the prospect of settling a case in the often more crucial weeks leading up to a hearing.

Even putting aside the fact that every case has its time (which may not be during such fixed periods of conciliation), the way this ‘pressure’ was to be applied was also extraordinary. The device was that, at the end of the conciliation period, section 18 subsection 2(A) would convert the ACAS officer’s ‘duty’ to conciliate into a mere ‘power’ and section 19 (2) provided that the parties should be warned that the officer ‘may no longer be available’ to conciliate after the postponement has ended. As a consequence, an overstretched ACAS officer became as easy to find after the end of the conciliation period as a free parking space on Oxford Street. The reason given by ACAS for this was, of course, that Parliament had clearly intended that conciliation outwith the conciliation periods should only be in ‘exceptional circumstances’.

As a consequence of the proposed changes, the duty on ACAS will now thankfully continue even after the conciliation period has ended, and like a dam bursting ACAS has already announced it will again conciliate on to the hearing and beyond, as before, in anticipation of the changes (see www.acas.org.uk/index.aspx?articleid=2043). We are glad.

Why anyone thought that parties (especially those who are unrepresented) would understand the rules or really be pressed into a tango before they were ready to dance is lost upon many of us.

Indeed, everything has its time. Some cases require disclosure, others a listing date. Some only break when witness evidence is exchanged. This timing cannot be reduced to statutory instrument.

People will dance when they are ready and it is pleasing that the legislation and ACAS have now woken up and given ex-employees and ex-employers the ability to dance in their own good time, without penalty if they fail to make it during the conciliation period. To paraphrase, if I may, Alesha Dixon, if the man can dance he, so often, gets a second chance.

Darren Clayton, Doyle Clayton Solicitors, London