Early conciliation

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.