ACAS Early Conciliation has been a mandatory step in most employment disputes for almost a decade after coming into force on 6 April 2014, as a precursor to eligibility for presenting a claim in the Employment Tribunal.

This means that before an individual can lodge most claims in the Employment Tribunal, they must first contact ACAS by completing an online form or by telephone. An ACAS officer will then contact the individual to obtain some initial information and to see if they wish to engage in the conciliation process. If they do, an ACAS conciliator will be appointed to the case and will contact the other side (usually the employer or former employer) to explore the possibility of settling the dispute.

Early conciliation allows both parties up to 6 weeks to enter into negotiations to settle the dispute provided both parties wish to engage in the voluntary process. If an agreement is reached, a COT3 agreement will be drawn up setting out the terms of the agreement.

In the event that conciliation is unsuccessful, ACAS will issue a certificate to both parties stating that the conciliation period has ended. The individual will then have a strict deadline to submit a claim in the Employment Tribunal.

If one or both parties do not wish to participate in conciliation, ACAS will issue a certificate immediately and the complainant is free to pursue a claim in the Tribunal by quoting the certificate number on the ET1 Claim Form. There is no penalty for the failure to participate by either party as it is a voluntary process.

The introduction of the ACAS early conciliation process has been the Government’s way of attempting to reduce the number of claims that are issued in the Employment Tribunal and to encourage settlement between parties in dispute at an early stage.

Employers are urged to take legal advice upon receiving contact from an ACAS conciliator before taking any action to avoid prejudicing their position.

Advantages of entering into the ACAS Early Conciliation Process for an Employer:

  • An employer may be willing to enter into negotiations at an early stage to avoid any negative publicity which may ensue following a claim being issued in the Employment Tribunal;

  • An employer may wish to limit their legal costs in defending any claim(s) which may be brought so may be keen to look to settle; and

  • An employer may wish to avoid management and HR spending a disproportionate amount of time in dealing with defending claim(s) and therefore may wish to consider settlement at an early stage.

Disadvantages of entering into the ACAS Early Conciliation Process for Employers:

  • Employers may find they are unable to assess prospects of successfully defending the claim without full particulars of the claim and therefore may wish to wait until a claim has been issued;

  • An employer may wish to take a robust stance at an early stage and decide not to enter into settlement negotiations and first see if the prospective claimant will actually issue the claim; and

  • In the event that a settlement is achieved through ACAS Early Conciliation, employers should take advice on the terms of the agreement before entering into it. Terms will need to include clauses dealing with confidentiality, non-derogatory comments and wording to explicitly state that the individual is waiving their rights to bring all claims in the Employment Tribunal to avoid any further claims being brought that were not referred to as part of the conciliation process.

If you receive contact from ACAS, where an individual is considering bringing a claim against your business, please contact our employment team for advice either by phone on 0845 287 0939 or by completing our online contact form.