Where a workplace dispute cannot be resolved internally, an employee may lodge a complaint before the employment tribunal. However, the parties will first be given the opportunity to engage in what is known as ACAS early conciliation. The question is: can an employer refuse early conciliation, or is this a process that they are required to participate in?
In this guide, we explain the process of early conciliation, from what this is, the pros and cons, and what happens if an employer refuses early conciliation. We also outline the alternatives available to help resolve a workplace dispute without recourse to legal proceedings.
What is ACAS early conciliation?
In most cases, where an employee is contemplating a tribunal claim against their employer, they will first be required to notify the Advisory, Conciliation and Arbitration Service (ACAS) of their intention to issue legal proceedings. ACAS is an independent body that provides free and impartial advice on employment rights, best practice and policies.
Where a workplace dispute cannot otherwise be resolved, ACAS can also intervene by way of the early conciliation process, helping the parties to resolve their issues without the need for a tribunal claim. ACAS early conciliation is a free-of-charge pre-tribunal dispute resolution procedure offered to the parties to a workplace dispute. This is essentially a process where an ACAS conciliator talks to both the prospective claimant and respondent about their dispute, giving the parties the opportunity to reach an amicable agreement.
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. Additionally, 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.
Do employers have to participate in early conciliation?
Prior to filing a claim with the tribunal, the employee will be required to complete an ACAS early conciliation form indicating whether or not they would like to engage in the early conciliation process. If the employee agrees to this, their case will be assigned to an ACAS conciliator who will then contact the employer to see if they are willing to take part in talks.
However, even though the rules relating to early conciliation place a mandatory requirement on a prospective claimant to notify ACAS of their intention to lodge a tribunal claim, the process itself is voluntary. This means that even where an employee agrees to engage in talks, but the employer refuses early conciliation, the employer cannot be forced to participate.
Even though an employer is not required to take part in talks, there are several advantages in doing so, including avoiding the time, expense and stress associated with defending a tribunal claim. It will also mean that the workplace dispute will remain confidential, whereas an employment tribunal claim is a public hearing. It can also be reported in the press.
In some cases, because of the inherent benefits involved with using the ACAS early conciliation process, employers may contact ACAS directly to request talks if they think that a workplace dispute with an employee could lead to a tribunal claim. This can very often be beneficial where the employee continues to work for the employer, in this way helping to maintain a positive working relationship by settling any dispute on mutually agreeable terms. In cases where an employer makes the first move by contacting ACAS, the claimant will no longer need to comply with the requirement to notify ACAS before making a tribunal claim.
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.
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.
Early conciliation FAQs
Is early conciliation legally binding?
A settlement reached through early conciliation will be legally binding, where ACAS will send a settlement form to both parties to sign. Once signed, the claimant will no longer be able to take their case to the employment tribunal.
How long does an employer have to respond to ACAS early conciliation?
If an employee agrees to early conciliation, ACAS will contact the employer to see if they are willing to take part in talks. If they agree, the conciliation process will be given up to 6 weeks.
How successful is early conciliation?
Early conciliation can be a very effective way of resolving workplace disputes quickly and easily. This is often because there are more flexible outcomes available to the parties, such as the provision of a reference or even an apology.
What happens if employer doesn't respond to tribunal?
An employer should reply within 28 days of receiving a tribunal claim, where any failure to respond, either within this timeframe or at all, may result in default judgment. This is where the tribunal decides the case without a hearing.
Last updated: 28 June 2022
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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 a 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