Take specialist advice on the implications of ACAS early conciliation.
We can guide you through all stages of workplace disputes.
Before an individual can make an employment tribunal claim, they first have to refer the dispute to ACAS for early conciliation and obtain an Early Conciliation Certificate.
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.
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.
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.
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.
Early conciliation: We can help
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.