ACAS Early Conciliation: Guide for Employers

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 is a mandatory process that must be undertaken before an employee can submit a claim to an Employment Tribunal. It provides an opportunity for both parties to resolve disputes, such as unfair dismissal or discrimination claims, without the need for a formal hearing. The process is free, confidential and facilitated by an ACAS conciliator who acts as an impartial mediator.

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.

For employers, engaging in early conciliation can help avoid the costs, time, and reputational risks associated with a tribunal. Reaching an agreement at this stage can result in a quicker resolution, allowing the business to focus on operations rather than lengthy legal proceedings. However, it is important to approach the process with a clear understanding of the claim and the potential outcomes.

If an agreement is reached, it is legally binding and prevents further claims on the same issue. Employers should ensure that any settlement terms are carefully considered and documented. If no resolution is reached, the employee will receive an ACAS certificate, allowing them to proceed with a tribunal claim.

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. Failing to engage constructively in early conciliation could lead to a less favourable position should the case progress to a tribunal. Seeking professional advice early can help employers handle the process effectively.

The following practical guide for employers dealing with workplace disputes looks at a number of frequently asked questions when it comes to early conciliation.

 

What is ACAS 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.

 

Is ACAS early conciliation mandatory?

 

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.

 

How does ACAS early conciliation work?

 

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:

 

• explain the conciliation process to the employer and employee
• discuss the issues with both parties independently of each other
• give each party an overview of the relevant law
  discuss with each party how tribunals have considered similar cases
• help each party to explore the strengths and weaknesses of their case
• discuss possible options with each party without making any recommendations and without making any judgement on how the case could turn out
• remain independent of the dispute, where they will not take sides or tell either party what to do, although they can openly
• discuss the available options
• outline the employment tribunal procedure.

 

 

Role of the ACAS conciliator

 

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.

 

How much is ACAS early conciliation?

 

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. 

 

How long does early conciliation take?

 

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.

 

If ACAS early conciliation is successful

 

As a voluntary process, the parties are usually willing to engage and are therefore invested in reaching an amicable resolution to the matter.

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.

 

If early conciliation fails

 

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.

 

Refusal to participate

 

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:

 

• it is free, where the costs associated with defending a tribunal claim can be significant
• it is confidential, where anything discussed will not be disclosed to the tribunal in the event that the dispute cannot be resolved and the employee still issues a claim
• it is impartial, where the conciliator will facilitate an agreement but remain neutral
• it is quicker than bringing a tribunal claim, which can typically take several months
• it is easier than bringing a tribunal claim, with far less paperwork and preparation
• it is often less stressful than a tribunal claim, which can involve technical and complex legal arguments and a great deal of uncertainty around witness credibility
• it is flexible and informal, where the potential outcomes available to the parties when using early conciliation are much wider than those available before the employment tribunal, such as the provision of an apology or a job reference
• if successful, it will result in a legally binding agreement, where the employee will no longer be able to bring a tribunal clam against the employer in relation to their dispute.

 

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.

 

Early conciliation support for employers

 

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:

 

• Obligation to inform, not participate. The guidance is limited to employees notifying ACAS of their intent to make a claim. There is no obligation for the employee to participate. Where the employee and the employer do not wish to pursue conciliation, ACAS will issue an Early Conciliation Certificate, an early conciliation number required for the employee to submit the claim to the tribunal.
• Outcome has to be agreed. Parties are not obligated to accept or agree to any solutions resulting from conciliation. While conciliation aims to facilitate discussions and encourage solutions, the conciliator cannot impose or obligate either party to accept any proposed settlement.
• The clock stops.Conciliation has the effect of stopping the clock on the time limit to bring a claim to the employment tribunal. The time limit resumes once the Early Conciliation Certificate has been issued.
• Duration.The conciliation process typically takes around four weeks but this can be extended by a further two weeks if all parties agree.
• Successful conciliation. In the event conciliation is successful, the agreement will be formally documented in the COT3. The terms of the settlement are binding as soon as the parties inform ACAS of their agreement, and the documentation will then follow.
• Failure to engage. If a claim does reach the employment tribunal, any award given can be increased or decreased by up to 25% if either side has unreasonably failed to follow the ACAS Code, which includes early conciliation.

 

 

Need assistance?

 

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:

 

• Assess the merit of the potential claim and whether settlement and participation in conciliation is in your organisation’s best interests
• Advice on the level of favourable settlement
  Liaise with ACAS and the employee or employee’s representatives on your behalf throughout the conciliation process
• Early advice in the event of a workplace dispute, disciplinary or grievance will help to manage the risk of escalation.

 

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 FAQs

 

What is ACAS Early Conciliation?

ACAS Early Conciliation is a process that allows employees and employers to try to resolve workplace disputes before a claim is submitted to an Employment Tribunal. It is facilitated by ACAS, an independent organisation that provides free and impartial support.

 

Is ACAS Early Conciliation mandatory?

Yes, employees must go through early conciliation before they can submit a tribunal claim. They must obtain an ACAS conciliation certificate to proceed if no agreement is reached.

 

How long does the early conciliation process take?

The standard period for early conciliation is up to six weeks. This can be extended if both parties agree more time is needed to try to reach a resolution.

 

What happens if an agreement is reached?

If both parties agree on a solution, a legally binding settlement agreement, known as a COT3, is signed, preventing further claims on the same issue.

 

What if no agreement is reached?

If no resolution is found, ACAS will issue a certificate to the claimant, allowing them to take their case to an Employment Tribunal.

 

Do employers have to participate in early conciliation?

Employers are not legally required to participate, but engaging in the process can help avoid tribunal proceedings and associated costs.

 

Can an employer refuse to engage in early conciliation?

Yes, but refusing to engage could lead to a tribunal claim proceeding, potentially increasing legal costs and reputational risks.

 

What issues can be resolved through early conciliation?

Early conciliation can address disputes related to unfair dismissal, discrimination, redundancy, wage disputes, and other employment-related claims.

 

Is early conciliation confidential?

Yes, all discussions during early conciliation are confidential and cannot be used as evidence in any later tribunal proceedings.

 

Does it cost anything to take part in early conciliation?

No, the early conciliation service provided by ACAS is free for both employees and employers.

 

Should legal advice be sought before engaging in early conciliation?

Seeking legal advice can help employers understand their position, potential risks, and whether a settlement would be in their best interest.

 

Glossary

 

 

Term	Definition
ACAS (Advisory, Conciliation and Arbitration Service)	An independent public body that provides free advice and conciliation services to help resolve workplace disputes.
Early Conciliation	A mandatory process offered by ACAS to help employees and employers resolve disputes before an Employment Tribunal claim is made.
Conciliation Certificate	A document issued by ACAS confirming that early conciliation has been completed, allowing a claimant to proceed to an Employment Tribunal.
COT3 Agreement	A legally binding settlement agreement reached through ACAS early conciliation that prevents further claims on the same issue.
Employment Tribunal	A legal forum where employment disputes, such as unfair dismissal or discrimination, are resolved if conciliation is unsuccessful.
Settlement Agreement	A formal agreement between employer and employee, typically involving compensation, which settles a dispute without going to tribunal.
Claimant	The individual (usually an employee) who raises a workplace dispute and may submit a claim to the tribunal if not resolved.
Respondent	The employer or organisation responding to an employment-related dispute or claim.
Without Prejudice	A legal principle ensuring that discussions during conciliation cannot be used as evidence in future tribunal proceedings.
Extension Period	An additional period granted to extend the conciliation process if both parties agree to continue discussions beyond the standard timeframe.
Employment Rights	Legal entitlements of employees, such as protection against unfair dismissal, equal pay, and redundancy rights, which may form the basis of a dispute.
Dispute Resolution	The process of resolving conflicts between employers and employees through methods such as mediation, conciliation, or tribunal proceedings.
Tribunal Claim	A formal legal claim made by an employee against an employer regarding a workplace dispute.
Legal Representation	Professional advice or support provided to either party during the conciliation or tribunal process to protect their interests.
Mediation	A voluntary process in which an independent third party helps employers and employees reach a mutual agreement outside of conciliation.