Take specialist advice on the implications of ACAS early conciliation.
In circumstances where a workplace dispute cannot be resolved internally, an employee may be looking to file a claim before the employment tribunal. However, the parties to a potential claim are usually first required to explore the possibility of early conciliation.
ACAS early conciliation can be one of the most effective ways of resolving a workplace dispute, not only when it comes to time and cost savings, but in maintaining a positive working relationship moving forward where an employee continues to work for their employer.
It is important for employers to approach conciliation in full consideration of the claim and the benefits to the organisation, in legal, financial and reputational risk terms, of settling before a claim is made.
The following practical guide for employers dealing with workplace disputes looks at a number of frequently asked questions when it comes to early conciliation.
Before someone can make an employment tribunal claim, they first have to refer the dispute to ACAS for early conciliation and obtain an Early Conciliation Certificate.
Early conciliation is a form of alternative dispute resolution to help resolve a disagreement between an employer and employee without recourse to tribunal proceedings. This is a free service offered by the Advisory, Conciliation and Arbitration Service (ACAS), where ACAS is an independent public body that receives funding from the government.
ACAS not only provides free and impartial advice on workplace rights, rules and best practice or procedures at work, they also help millions of employers and employees every year, improving workplace relationships and resolving a wide range of workplace disputes.
Since the removal of tribunal fees, and with the number of tribunal claims continuing to increase, there has been significant growth in the use of conciliation with more organisations having to navigate pre-tribunal procedures.
If an employer has been unable to resolve a dispute with an employee, the employee may decide to lodge a complaint before the employment tribunal. However, a prospective claimant must first notify ACAS of a potential claim before lodging their claim form. At this stage, ACAS will offer both parties the chance to engage in early conciliation.
Even though there is a mandatory requirement on the employee to notify ACAS of their intention to lodge a tribunal claim, participation in the early conciliation process itself is voluntary. This means that even where an employee agrees to engage in talks but the employer refuses, the employer cannot be forced to participate in early conciliation and nor will this prejudice the employer’s position if a claim is issued before the employment tribunal. This is because ACAS is entirely independent of the employment tribunal and is therefore not permitted to discuss the employer’s refusal or reasons for their refusal with the tribunal.
Equally, if the employee refuses to engage in early conciliation, the employer cannot force them to agree to this. However, an employer may approach ACAS directly to help resolve a potential dispute using the early conciliation process, where this can be an effective way of handling a workplace dispute where this may otherwise escalate into a tribunal claim. If an employer contacts ACAS directly, and the matter cannot be resolved, this will exempt the employee from the requirement to notify ACAS of their intention to bring a claim.
For employers looking to initiate early conciliation themselves, they should contact ACAS directly by telephone on 0300 123 1122. This helpline is open Monday to Friday between the hours of 9am to 5pm. An ACAS adviser will help to explore all available options with the employer including, although not necessarily limited to, ACAS early conciliation. However, an employer must ensure that the employee has been encouraged to use the employer’s own internal grievance procedure before taking steps to explore other options.
Before lodging a claim before the employment tribunal, the employee must complete an online form, providing ACAS with their basic details and those of their employer. There are time limits for tribunal claims, where the employee must notify ACAS within this prescribed timeframe. For example, to claim unfair dismissal, the employee will usually have 3 months minus one day from the date their employment ended to issue their claim. If the claim is about redundancy pay, the deadline is usually 6 months from the date of dismissal.
On receipt of the online form, ACAS will contact the employee to see if they agree to early conciliation where, if they do, their case will be assigned to an ACAS conciliator who will contact the employer to see if they are also willing to take part in negotiations.
Provided both parties agree to engage in early conciliation, this is a process in which an impartial ACAS conciliator will provide the employer and employee with the chance to resolve their dispute on mutually agreeable terms without the need for any tribunal claim.
The ACAS conciliator will:
The role of the ACAS conciliator is not to offer any advice around making or accepting any proposals for resolution, or as to the merits of the claim or defence.
As such, each party should seek expert advice from an employment law specialist to assist with any decision-making. However, seeking independent legal advice is not a strict requirement.
As a public body funded by the government, ACAS’ early conciliation service is free to both the employer and the employee. This means that the parties can find a cost-effective solution to their workplace dispute without having to go to the tribunal.
From the employer’s perspective, avoiding tribunal proceedings can save a significant amount of time and expense in defending a workplace dispute, where any costs cannot usually be recovered in the tribunal, even if a defence succeeds. In addition to any legal costs incurred in defending a claim, there will also often be costs associated with the time it takes to prepare a defence, from disclosure of documentation to producing detailed witness statements, not to mention witnesses attending any hearings to give oral evidence.
If both the employer and employee accept the offer of early conciliation, the ACAS conciliator will have a period of 6 weeks to help the parties negotiate a settlement, where the time limit for the employee bringing a tribunal claim will be put on hold.
ACAS early conciliation will take place via telephone, where the ACAS conciliator will liaise with each party with a view to finding a solution that they can both agree on.
However, the 6-week window provided for early conciliation can occasionally be shortened by any delays, not least as ACAS is tasked with dealing with thousands of disputes on an annual basis.
As a voluntary process, the parties are usually willing to engage and are therefore invested in reaching an amicable resolution to the matter.
In the year 2021 to 2022, ACAS received 91,000 requests for its individual dispute resolution service, from around 156,000 individuals; of these, 36% resulted in a positive outcome.
If both parties agree to engage in early conciliation and a resolution can be reached, this agreement can be written up within a settlement form, known as a COT3. Once a settlement has been reached, this will be legally binding, where the employee will no longer be able to take the matter to the employment tribunal and the case will be closed.
Technically speaking, completion of the COT3 form is not a strict legal requirement, where a verbal or written agreement following ACAS early conciliation, at least one that satisfies the legal formalities of a contract, will still be binding. However, in practice, the parties are always encouraged to complete and sign a COT3 form to document the terms of their agreement to avoid any dispute at a later date if enforcement proves necessary. The COT3 will act as a formal record of the agreement reached following early conciliation.
The employer must comply with the terms of any agreement. This means, for example, if it was agreed that the employer pay the employee compensation and provide a written apology, then the compensation must be paid and the letter sent within the timescales set out in the COT3. As a legally binding agreement, any failure to comply with the terms of an early conciliation agreement could be enforceable by the claimant through the courts.
As ACAS early conciliation is designed to facilitate settlement, rather than restrict or pressure the parties in any way, the success rates can be good. However, there is no guarantee of success, where a tribunal claim may still be issued, especially if the employee has unrealistic expectations of what their claim is worth or any other terms of settlement.
If an agreement cannot be reached, the employee will be given a certificate with a unique number which they can use to complete their claim if they still decide to pursue the matter before the employment tribunal. However, the tribunal will not be made privy to the matters discussed during the course of ACAS early conciliation, as this is confidential.
Equally, if conciliation is refused by either party in the first place, the claimant will be given an early conciliation certificate containing a number to quote when making their claim. Both parties will also be able to decline ACAS’s conciliatory services part way through.
Provided the claimant starts the early conciliation process prior to expiry of their deadline date, they will have at least 1 month from the date of receipt of their early conciliation certificate to make a tribunal claim, although in some cases this might be longer.
However, even once a claim has been issued before the employment tribunal, the parties can still talk through ACAS up to and during the tribunal proceedings. This is known as conciliation, rather than early conciliation. ACAS can continue to offer conciliation with a view to reaching a settlement on mutually agreeable terms right up until the point that a judgment is made.
The process of ACAS early conciliation is entirely voluntary; it is only a mandatory requirement for the employee to inform ACAS that they intend to make a claim. This means that either the employer or employee can refuse to participate in this process.
However, early conciliation does offer a number of key benefits, for both the prospective claimant (the employee) and the prospective respondent (the employer), including:
As the process is confidential, the outcome of early conciliation will remain private, unlike a tribunal claim which involves a public hearing. A tribunal decision can also be reported in the press, whereas early conciliation can help to protect the reputation of those involved.
Employee participation in conciliation is not mandatory; the requirement is for the employee to notify ACAS, and only if they consent to their involvement will ACAS attempt to make contact with the employer.
Where the employee consents and the employer is notified, employers must ensure they approach the process strategically in the context of the wider potential legal and cost implications.
Key considerations include:
DavidsonMorris supports employers through all stages of a workplace dispute, including early conciliation of a claim.
We provide professional representation through the first stages of a tribunal and the conciliation process to help prevent a claim from being made where possible and appropriate. We will:
Should your organisation be contacted by ACAS about conciliation of a claim, you should ensure HR team and managers are trained to know how to deal with the notification given the confidential and time sensitive issues involved.
Where early conciliation is not successful or appropriate, we can support through tribunal representation, continuing settlement discussions where appropriate for resolution before the hearing.
ACAS early conciliation is a free and confidential service designed to encourage settlement of workplace disputes before they go to tribunal, helping parties avoid the cost, stress and efforts of a tribunal claim. It is a form of alternative dispute resolution offered by the Advisory, Conciliation and Arbitration Service (ACAS) to help resolve a disagreement between an employer and employee without recourse to tribunal proceedings.
If both parties accept the offer of early conciliation, the ACAS conciliator will have 6 weeks to help the parties negotiate a settlement via telephone, with a view to finding a solution to their workplace dispute on mutually agreeable terms.
There are few drawbacks when it comes to ACAS early conciliation, although the 6-week timeframe allowed for negotiations may not be sufficient for an employer and employee to reach an amicable agreement in the context of any complex workplace dispute.
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