If a workplace dispute with your employer has escalated and you are considering making a tribunal claim, there are steps you will need to follow before you get to the Employment Tribunal. ACAS rules require a potential claimant to go through the Early Conciliation process before a tribunal claim can be issued.
ACAS early conciliation is a free and independent service, designed to resolve workplace disputes and avoid the need to go before the tribunal.
The following guide looks at the process of early conciliation, in particular, completion of the ACAS early conciliation form and how this form fits into the wider early conciliation process.
What is the ACAS early conciliation form?
If an individual is considering legal proceedings against their employer, prior to issuing a tribunal claim they will usually be required to notify the Advisory, Conciliation and Arbitration Service (ACAS) of his or her intention to do so using an ACAS early conciliation form.
ACAS is an independent public body that provides free and impartial advice to employers and employees on employment rights, best practice and policies, as well as resolving workplace conflict. Furthermore, when a workplace dispute cannot otherwise be resolved, ACAS can intervene by way of early conciliation, helping the parties to resolve their issues without recourse to legal proceedings.
By submitting the early conciliation form, this will provide ACAS with an opportunity to invite the parties to engage in the early conciliation process.
Why is the form needed?
Before being able to issue a tribunal claim, it is a pre-requisite that the claim is registered with ACAS under their mandatory early conciliation scheme. This requires the prospective claimant to obtain an early conciliation (EC) certificate before presenting their ET1 claim form to the tribunal.
As such, in order to acquire the necessary EC certificate, the prospective claimant will first need to file an ACAS early conciliation form. Thereafter, if ACAS has not been able to help the parties reach an agreement, either because one or both parties declined to participate in early conciliation, or the process proves to be unsuccessful, the claimant will be given a certificate.
The EC certificate will contain a unique reference number, and it is this number that will be needed to submit any claim to the employment tribunal.
Who needs to complete the ACAS early conciliation form?
In nearly all cases any individual looking to make a claim to the employment tribunal must first submit an early conciliation form to notify ACAS of their intentions. That said, there are limited exceptions to the rules, for example, where ACAS does not have the power to conciliate on some, or all, of the claim, or the employer has already been in contact with ACAS.
It is not uncommon for an employer to have concerns about the possibility of a tribunal claim being lodged against them and, as such, they may want to initiate early conciliation with a view to resolving the matter before it gets that far. In this way, the parties can often find a suitable way forward, using early conciliation to amicably settle a workplace dispute on mutually agreeable terms.
For employers looking to initiate early conciliation, they should contact ACAS directly by telephone on 0300 123 1122. An ACAS adviser will help to explore all available options including, but not necessarily limited to, conciliation.
When do you need to submit the early notification form?
An individual should only complete an ACAS early conciliation form if they are certain about making a claim to an employment tribunal. For employees who are unsure of whether to start a legal claim, they can talk through their options with an ACAS helpline adviser by calling 0300 123 1100.
In particular, prior to even contemplating tribunal proceedings, an employee should always first consider using their employer’s appeals or grievance procedure if they have one, or letting it run its course if they have already embarked upon this internal process.
That said, the tribunal time limits are strict, where most tribunal claims must be started within three months, less one day, from either termination of an individual’s contract of employment or the act complained about. As such, an existing employee may not have sufficient time to await the outcome of any appeals or grievance procedure, and will need to act without further delay.
It is important to bear in mind, however, that as long as an ACAS early conciliation form is submitted within the relevant timeframe, namely, three months from the point at which time starts to run, an employee who obtains an EC certificate should benefit from an extension to the usual time limits.
Depending on the nature of the prospective claim, this will be achieved in one of two ways: either by adopting the “stop the clock approach”, namely, between the date ACAS receives the notification form until the date an EC certificate is issued, or simply by “adding one month” post-issue. As such, the claimant will have at least one month after the end of early conciliation to make their claim.
In the event that a claim is not registered with ACAS within the requisite three months, the clock will not be stopped, nor will an additional month be added, and the prospective claimant will be out of time to bring their claim.
It is also important to bear in mind that although the deadline for making a tribunal claim will be pushed back where a prospective claimant has submitted an ACAS early conciliation form, this does not apply when an employer initiates this process having contacted ACAS directly.
How to complete the ACAS early conciliation form
The ACAS early conciliation form will need to be completed online. It must also only be completed in circumstances where the individual has an existing dispute with their employer and they intend to issue tribunal proceedings.
By submitting the form this is making clear that if early conciliation cannot help, they are intending to make a tribunal claim. That said, the notification form is not an application to the employment tribunal, merely an indication that the employee intends to lodge a claim, if the matter cannot otherwise be resolved.
To complete the form, the employee will need their employer’s name and address. These details can usually be found on their payslip, contract of employment or any written statement of particulars of their employment. In the event of any uncertainty, it may be advisable to check directly with the employer or against information documented with Companies House.
It is important to get the name of the prospective respondent right, ie; their legal identity, otherwise risk any subsequent claim being rejected by the tribunal if the name on the claim form and EC certificate do not match. The prospective claimant must also give their own name and contact details.
Once the form has been submitted it will automatically be acknowledged via an automated email, assuming an email address is provided, or by letter if not.
This acknowledgment will include the claimant’s name, the date of receipt and the name given for the respondent. However, mail-filtering systems designed to keep out SPAM can often accidentally filter any email acknowledgement, such that the intended recipient is not notified that the email did not deliver.
To ensure that any acas.org.uk emails are not filtered into the recipient’s “junk” or “bulk” folders, the individual submitting the notification form should ensure they add acas.org.uk to their list of trusted senders.
What happens in the ACAS early conciliation process?
Once the employee has submitted the ACAS early conciliation form and received their acknowledgement, they will be invited to contact ACAS via telephone so that they can answer some basic questions about their workplace dispute and prospective claim. The process of early conciliation will also be explained and the employee will be asked if they would like to participate.
In the event that the prospective claimant declines to engage in early conciliation, they will be given an EC certificate so that they may proceed with their claim. If, on the other hand, the individual agrees to early conciliation, ACAS will contact their employer to see if they are also willing to take part in talks.
Subject to the agreement of both parties, the matter will be passed to an ACAS conciliator. The conciliator will then liaise between the parties, via telephone, for a period of up to one month. However, this period can be extended by two weeks if the parties are close to reaching an agreement.
Conciliation is a confidential process so any information disclosed to the conciliator will not be passed onto the tribunal in due course. Further, the conciliator will only discuss certain matters with the employer where there is express agreement from the employee.
In the event that the outcome is unsuccessful, and the dispute cannot be resolved through early conciliation, ACAS will provide the employee with the EC certificate at this stage. Further, if the prospective respondent declines to engage in early conciliation, ACAS will again provide the employee with an EC certificate.
Even in circumstances where early conciliation has not proved to be successful, ACAS can continue to assist the parties right up until the employment tribunal outcome, although this is referred to as conciliation rather than early conciliation. Normally, however, the parties will still be assisted by the same conciliator that they had previously.
Where early conciliation has been successful, the ACAS conciliator will document the terms of the agreement within what’s known as a COT3 settlement form. This will then constitute a legally binding agreement that can be enforced through the courts. Further, having settled a dispute via early conciliation, the employee will no longer be able to bring the matter before the employment tribunal.
How does the form fit into the process?
Although it is a mandatory requirement for the prospective claimant to notify ACAS using an early conciliation form of their intention to make a tribunal claim, participation in the process itself is entirely voluntary.
That said, early conciliation has significant benefits. In particular, it is often quicker, easier, less time-consuming and more cost-effective than dealing with a tribunal claim. It can also help to restore the working relationship between the parties, not least given that they can agree on outcomes that would not be available in the tribunal, such as a written apology.
Ultimately, however, it is a matter for the parties to assess the benefits of early conciliation in the context of their particular dispute, weighed against the risk of claiming or defending the same matter before an employment tribunal.
That said, the mandatory nature of the ACAS early conciliation form can often provide the necessary platform for the parties to take advantage of this free-government funded service, and find an acceptable way forward.
The conciliation process is intended to be relatively informal, where even the ACAS early conciliation form is designed in such a way so as to be completed by the individual bringing a claim, rather than their representatives.
That said, although individuals are not obliged to have a representative in order to gain access to the early conciliation process, there is nothing precluding the parties from seeking expert legal advice at this stage, or earlier. The notification form even makes specific provision for the claimant to include the name and contact details of their legal representative, where ACAS will liaise directly with that named representative where these details are provided.
In particular, expert advice can often be crucial in relation to the calculation of time limits for bringing a claim, and how the ACAS early conciliation provisions can affect these limits. As touched upon above, tribunal time limits can vary depending on the nature of the claim, the date on which the employment was terminated or other event giving rise to the claim, as well as when the ACAS early conciliation form was submitted.
It is also important to bear in mind that although the ACAS conciliator can sum up the respective strengths and weaknesses of each sides’ case, they will not provide the parties with any advice as to the merits of their claim or defence, nor can the conciliator offer any advice as to whether to accept or make any proposals for resolution. For this, the employer and employee will need to independently seek expert advice from an employment law specialist.
If you have any questions or concerns about making a tribunal claim and following the early conciliation process, our employment law experts are on hand to help you understand your position and options.
ACAS early conciliation form FAQs
What is ACAS early conciliation?
Early Conciliation is a service provided free of charge by ACAS. It is designed to resolve issues between employers and employees without the need to go before the Employment Tribunal. Early conciliation is a mandatory requirement before a tribunal claim can be filed.
How do you start early conciliation?
The process is started by filing the ACAS early conciliation notification form online.
How long do you have to bring an employment tribunal claim?
In most cases, employees have 3 months less one day of termination of contract or the from the date of the offending event (such as an act of discrimination) to issue a tribunal claim.
Last updated: 13 February 2020