Since 2014, one of the mandatory processes for an individual (the “claimant”) lodging a claim at the Employment Tribunal is that they must go through Acas Early Conciliation (EC). Stuart Chamberlain, author and senior employment law consultant at Croner-I, summarises the stages of the EC process and draws out the important points for employers.
Starting Early Conciliation
Before an Employment Tribunal claim has been lodged, the claimant must contact Acas (usually through its website), which will offer Early Conciliation to try to help settle the dispute without the need to lodge a tribunal claim. There are some important points to remember here.
Acas has a statutory duty to offer Early Conciliation for an initial period of up to a calendar month, with the conciliator having the discretion to extend that by two weeks if both parties agree that extra time may help resolution.
Early conciliation will cover most employment disputes that are listed under s.18 of the Employment Tribunals Act 1996 which includes ordinary unfair dismissal, redundancy payments, discrimination and rights to time off and family friendly rights.
During the Early Conciliation period, the time limitation for putting in a tribunal claim is paused (see section below for details about the time limitation for lodging an Employment Tribunal claim).
It is important to note that:
a claim for unfair dismissal must be made to the Tribunal within three months less one day from the date the employment ended
for redundancy and equal pay claims, it is 6 months less one day from the date the act complained of.
If Acas is not contacted within the three months’ time limit, the individual will not be able to proceed to a claim at the Tribunal. There are very few exceptions to this.
The Early Conciliation process
There are a number of important stages in this process.
When the claimant contacts Acas, they are only required to give their name and address and those of the employer. There is no requirement to explain what the dispute is about. If any of these details are incorrect, the Tribunal may reject the claim.
Acas will allocate a Conciliation Officer to the case. This Acas Officer is independent and will talk through the issues with the parties to see if the issue can be resolved.
If the claimant agrees to an attempt to resolve the dispute, Acas will then contact the employer.
If the claimant or employer does not wish to settle the dispute, then the Conciliation Officer will issue an EC Certificate with a specific number and the claimant can proceed with the claim to the Tribunal.
An offer to settle
The employer may make an offer (a “settlement”) to the employee. This will usually consist of some compensation in return for the claimant dropping the case.
If the claimant does accept the offer, the Conciliation Officer will write up the details of the agreement on Form COT3.
A COT 3 is a legally binding document whereby the employer usually pays a sum of compensation (and sometimes a reference) in return for the claimant agreeing not to continue with the claim to the Tribunal.
A new time limitation
When someone notifies Acas of their intention to make a Tribunal claim, the clock stops ticking on their limitation period. The clock starts again once Early Conciliation ends and extra time is added to ensure everyone has at least one calendar month in which to present a tribunal claim after Early Conciliation ends.
The following are some examples.
The claimant’s original deadline is 6 October. She receives her early conciliation certificate on 17 September. She must have her Tribunal claim lodged by midnight on 17 October.
An employee receives their early conciliation certificate on 1 February and the original deadline is 3 March. If early conciliation takes 11 days, then they must get their Tribunal claim in by midnight on 14 March.
If someone is already late for making a Tribunal claim by the time they notify Acas, they will still be late when Early Conciliation ends as no adjustment is made in these circumstances. If an ET1 is subsequently lodged, the claimant would have to rely on the Tribunal’s discretion to allow a late claim.
If the claimant does go on to lodge an Employment Tribunal claim (on form ET1), Acas will continue to offer a free conciliation service right up until the tribunal hearing to help parties try and find a solution.
Tips for employers
Early Conciliation is mandatory, but the process is voluntary. The employee is legally required to contact the Acas EC before making a tribunal claim but neither party is obliged to take part in the conciliation and can stop whenever they wish.
The employer does get a say in the proceedings — the independent conciliator cannot enforce a settlement. The employer must agree.
The process is confidential. Anything the employer tells Acas can only be discussed with the other party if that employer agrees that it would be helpful in trying to settle the case. Settlement discussions cannot be used by either party at a tribunal hearing, which is good news seeing as Tribunals are heard in public.
Since the Supreme Court found employment tribunal fees unlawful in 2017, there has been a big surge in claims. Despite the increase in claims, the Acas Annual Report for 2018–2019 shows that the statistics are not all bad news for employers:
Acas received over 132,000 notifications in 2018/19 — up 21% on the previous year
of this number, 36,531 claims were lodged with an Employment Tribunal — this is up on the two previous years; reports suggest this increase in claims is putting a strain on the Employment Tribunal system
73% (92,000) of notifications handled by Acas did not progress into an Employment Tribunal claim (either because a formal or informal resolution was reached by the parties or because the claimant otherwise reconsidered their intention to proceed)
of the cases which did progress into an Employment Tribunal claim, Acas conciliation still resulted in settlement in 51% (14,700) of cases, with a further 18% (5,100) being withdrawn by the claimant.
Finally, Acas does emphasise that EC is a further opportunity for the parties to resolve a dispute without costly and lengthy legal proceedings.
Early conciliation generally works where both parties want to resolve the issue. The fact that the EC certificate can be issued where one party is unwilling to conciliate does raise the issue of whether it is suitable for all workplace disputes between an employee and the employer.
For professional advice on dealing with any HR matters, speak to a qualified consultant on 0844 561 8149.