When a workplace dispute cannot be resolved internally, the employee may have recourse to bring a claim before the employment tribunal. Before they can do so, the individual must first notify the Advisory, Conciliation and Arbitration Service (ACAS) of their intention to bring a claim. This notification triggers the opportunity for the employee and employer to participate in ACAS early conciliation. The question is: can an employer refuse early conciliation, or is this a process they are required to participate in?
In this guide, we explain how early conciliation works, its advantages and limitations, what happens if an employer chooses not to engage, and the alternatives available to resolve workplace disputes.
What is ACAS early conciliation?
Early conciliation is a free, impartial and confidential service provided by ACAS to help employers and employees resolve workplace disputes before a formal tribunal claim is made.
Before an individual can bring most types of claims before the employment tribunal, such as for unfair dismissal, discrimination or redundancy pay, they first have to contact and notify ACAS, which triggers the early conciliation process. The employee will be asked whether they wish to attempt to resolve the dispute through conciliation. If so, ACAS will contact the employer to see if they are also willing to engage.
If both parties agree, an ACAS conciliator will act as a neutral intermediary, facilitating discussions to explore whether a settlement can be reached. The process normally lasts up to six weeks, during which the time limit for issuing the tribunal claim is paused.
Pros & cons of ACAS early conciliation
There are several benefits to engaging in early conciliation, for both the prospective claimant (the employee) and the respondent (the employer), including:
- It is free: where a dispute can be resolved using this process, the parties will also avoid any costs associated with bringing or defending a tribunal claim
- It is impartial: this means that ACAS is not on either side, but simply there to help facilitate an agreement between the parties without recourse to a tribunal claim
- It is confidential: ACAS is not part of the tribunal service, where any discussions will not be disclosed to the tribunal, nor will engaging in this process affect the outcome of any claim
- It is quicker than tribunal proceedings: early conciliation is usually concluded after 6 weeks, while a tribunal claim can take several months, if not longer
- It is easier and less stressful than a tribunal claim: there can be complex paperwork and technical legal arguments when bringing or defending a claim before the tribunal, where early conciliation requires a lot less preparation
- It has more flexible outcomes: the potential outcomes available to the parties when using early conciliation are much wider than those available before the employment tribunal, for example, the provision of a reference or even an apology.
There are generally few drawbacks when it comes to early conciliation. This is because this process is designed to facilitate settlement, rather than restrict or pressure the parties in any way. However, there is no guarantee of success, where a tribunal claim may still be issued, especially if the employee has unrealistic expectations of settlement terms. Also, because of the number of disputes that ACAS are asked to deal with, the 6-week window within which early conciliation can take place may be shortened by any delays. Employers are advised to take professional advice to ensure they act in their best legal interests when dealing with a workplace dispute.
Another key consideration is the ‘Stop the Clock’ rule. Tribunal claims must usually be brought within strict time limits (e.g. 3 months less one day for unfair dismissal or discrimination). However, once the early conciliation process is initiated, the limitation period is paused. Once the conciliation ends, the clock resumes, with at least one month to file a tribunal claim from the date of the certificate. In some cases, claimants may have slightly longer depending on when early conciliation started.
Where a resolution is reached, the terms will be recorded by ACAS in a legally binding settlement agreement known as a COT3. Once signed, the employee cannot pursue a tribunal claim about the same dispute. The terms may include financial compensation, references, or other non-financial outcomes. Breach of a COT3 agreement may be enforced through the courts.
Do employers have to participate in early conciliation?
Participation in early conciliation is not mandatory for either party. The claimant must contact ACAS before submitting most types of tribunal claims, but neither the employee nor the employer can be compelled to engage in settlement discussions.
Employers may choose to decline participation for various reasons, for instance, if they believe the claim lacks merit or if they prefer to deal with the matter formally.
However, choosing not to participate does not prejudice their position in any subsequent tribunal claim. The tribunal will not be informed of whether conciliation was attempted or refused.
Nonetheless, early conciliation presents a valuable opportunity to avoid the cost, time, and reputational risks associated with tribunal litigation. Employers who foresee the potential for a claim may also proactively contact ACAS to request early conciliation.
Can an employer refuse early conciliation?
In the same way that if an employee decides not to take part in conciliatory talks, if the employee agrees but the employer refuses early conciliation, ACAS will simply issue the claimant with an early conciliation certificate containing a unique reference number. This is the number that the claimant will need to proceed with a claim if they choose to do so.
Equally, where the parties have engaged in early conciliation but were unable to reach an agreement, the claimant will again be issued with an early conciliation certificate. Both parties will also be able to decline ACAS’s conciliatory services at any stage.
If the employee wishes to proceed with conciliation but the employer declines, the conciliator will bring the process to an end and issue an Early Conciliation Certificate. This certificate includes a unique reference number that the claimant must include when submitting their tribunal claim.
In circumstances where an employee agrees to early conciliation but the employer refuses to engage in this process, this will not in any way prejudice the employer’s position if the matter then proceeds to a tribunal claim. This is because ACAS is an independent organisation and is not allowed to discuss the matter with the tribunal in any way whatsoever.
What happens if both parties agree to early conciliation?
If both parties agree to participate in early conciliation, the conciliator will liaise between the two by telephone over a 6 week period to try to find a solution that they can agree on.
During this period, the time limit for the employee to make a tribunal claim will be put on hold to allow for talks to take place. For example, if an employee wants to claim for unfair dismissal against their employer, they will usually have 3 months less 1 day from the date their employment ended to issue their claim. If the claim is about redundancy pay or equal pay, the deadline is 6 months less 1 day. Provided the claimant starts the early conciliation process prior to expiry of the deadline date, they will have at least 1 month from the date of receipt of their ACAS certificate to make a tribunal claim, although in some cases this might be longer.
Where agreement can be reached between the parties, ACAS will write up what has been agreed in a settlement form which the parties will be asked to sign. Once signed, this form will become legally binding. This means that the claimant will no longer be able to lodge a claim with the employment tribunal about the same dispute and the case will be closed. However, the employer must comply with the terms of any agreement, for example, if it was agreed between the parties that the employer would pay the employee compensation and provide a written apology, then the compensation must be paid, and the letter written and sent, within the timescales set out in the settlement form. As a legally binding agreement, any failure to comply with its terms could be enforceable through the courts.
However, it is the voluntary and flexible nature of early conciliation that tends to encourage settlement. This is because the parties are willingly engaging in talks with a view to finding an amicable resolution to the matter. The job of the conciliator will be to discuss the issues with both sides, provide an overview of the relevant law, explain how employment tribunals have considered similar cases, help both sides to explore the strengths and weaknesses of their respective cases, and discuss possible options to help resolve the dispute but without making any recommendations. The conciliator will not take sides, represent either side, advise on whether to agree on a settlement, comment as to how strong or weak a case is, help either party prepare their case for tribunal, or make any judgement on how the case could turn out.
Where agreement cannot be reached, and the employee goes on to issue a claim, the parties can still talk through ACAS up to and during the tribunal proceedings, right up until the point that a judgment is made. This is known as conciliation, rather than early conciliation.
Alternatives to resolve workplace disputes
Workplace disputes can often be resolved internally, either informally at work by way of a quiet chat with those involved or by the employee lodging a formal grievance. Dealing with problems at work on an informal basis can often be the quickest and most effective way of resolving issues. However, all workplaces must have a written procedure for formally bringing grievances, typically for serious or ongoing issues, where the employer is duty bound to fully investigate the complaint and, where appropriate, take steps to resolve the matter.
There are also rules in place in relation to an employee raising, and an employer addressing, a formal grievance, where an employee’s actions and the procedure an employer follows will be taken into account if the case reaches an employment tribunal. While there is no strict requirement on the parties to follow any formal grievance procedure, any unreasonable failure on the part of either party to comply with any provision of the ACAS Code of practice on disciplinary and grievance procedures, may result in a 25% reduction or increase in damages.
Where at all possible, it is advisable for all employers to encourage the use of their internal grievance procedures so as to minimise the risk of a workplace dispute escalating into a tribunal claim. Equally, where any grievance cannot be resolved internally, it will often be in the interests of the employer to engage in early conciliation, even if they feel that any potential claim against them is unfounded. Defending a tribunal claim, even one without merit, can be time-consuming, costly and damaging for an employer all round.
By utilising both informal and formal resolution procedures, this can help to minimise the risk of a workplace dispute ever coming before the employment tribunal, saving time and expense, helping to maintain positive working relations and protecting the employer brand.
Need Assistance?
DavidsonMorris’ employment lawyers offer specialist guidance to employers on all aspects of workplace dispute resolution, including dealing with the preliminary stages of tribunal claims and providing tribunal representation. For specialist advice, contact us.
Refusing Early Conciliation FAQs
What is early conciliation?
Early conciliation is a process facilitated by ACAS (Advisory, Conciliation and Arbitration Service) where employers and employees attempt to resolve disputes without the need for an employment tribunal. It’s often the first step before a claim can be taken to tribunal.
Is early conciliation mandatory for employers?
While engaging in early conciliation is not legally mandatory for employers, it is highly recommended. Failing to participate may lead to a tribunal claim.
Can an employer refuse early conciliation?
An employer can refuse to participate in early conciliation. However, this decision should be made carefully, considering the potential legal and financial consequences.
What happens if an employer refuses early conciliation?
If an employer refuses early conciliation, the employee may proceed to take their case to an employment tribunal.
How does refusing early conciliation affect an employment tribunal?
Refusing early conciliation will not be disclosed to the tribunal and does not prejudice the employer’s position. However, it may mean a missed opportunity to resolve the matter without litigation.
Should an employer seek legal advice before refusing early conciliation?
It is strongly advised that employers seek legal counsel before deciding to refuse early conciliation. Legal experts can provide guidance on the risks involved and help prepare for any potential tribunal proceedings.
What are the alternatives to early conciliation?
If early conciliation is not suitable, employers might consider other forms of dispute resolution, such as mediation or arbitration. These methods can also help avoid the costs and stress of a tribunal.
Does refusing early conciliation increase the chances of a tribunal claim?
Refusing early conciliation may increase the likelihood of an employee pursuing a tribunal claim, as it indicates that no resolution was reached during the conciliation process.
Can an employer change their mind after initially refusing early conciliation?
An employer can change their stance and agree to participate in early conciliation later in the process, although it’s preferable to engage from the outset to avoid escalating the dispute.
What are the cost implications of refusing early conciliation?
Refusing early conciliation could result in higher legal costs, potential compensation payouts if the case goes to tribunal and the loss of time and resources used defending the claim.
Glossary
| Term | Definition |
|---|---|
| ACAS (Advisory, Conciliation and Arbitration Service) | A UK public body that offers free and impartial information and advice to employers and employees on workplace relations and employment law, including early conciliation. |
| Early Conciliation | A process facilitated by ACAS aimed at resolving employment disputes before they reach an employment tribunal. It involves discussions between the employer and employee to settle the matter without formal legal action. |
| Employment Tribunal | A legal body in the UK that resolves disputes between employers and employees regarding employment rights. If early conciliation fails, the employee may take their case to an employment tribunal. |
| Refusal of Early Conciliation | An employer’s decision not to participate in the early conciliation process. This may lead to the employee pursuing a claim in an employment tribunal. |
| Mediation | A voluntary and confidential process where a neutral third party helps employers and employees resolve disputes before they escalate to legal action. |
| Arbitration | A method of dispute resolution where an independent arbitrator makes a decision on a dispute, which is usually binding. It is an alternative to going to an employment tribunal. |
| Legal Counsel | Professional legal advice or representation provided by a solicitor or barrister, especially important when dealing with employment disputes. |
| Dispute Resolution | The process of resolving a dispute or conflict between parties, which can include negotiation, mediation, arbitration, or tribunal proceedings. |
| Claimant | The employee who brings a claim against their employer, typically after failing to resolve the issue through early conciliation. |
| Respondent | The employer or organisation that responds to a claim made by an employee in an employment tribunal. |
| Settlement | An agreement reached between an employer and employee to resolve a dispute, often involving compensation, which may be agreed upon during early conciliation or before a tribunal hearing. |
| Compensation | A financial payment awarded to an employee if they win a tribunal claim, which can cover lost earnings, damages, and other related costs. |
| Reputation Management | Actions taken by an employer to maintain or improve their reputation, particularly important when dealing with disputes that could become public through tribunal claims. |
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
