ACAS EARLY CONCILIATION

A guide on Acas early conciliation from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on Acas early conciliation, please contact us as soon as possible.

What is Acas early conciliation?

If an employee or ex-employee wants to make an employment tribunal claim it is a legal requirement, unless an exemption applies, to have made an early conciliation notification to Acas. A tribunal will reject a claim form (ET1) unless the claim has been referred to Acas and an early conciliation certificate issued. This certificate has a unique reference number, which confirms that the early conciliation requirements have been met and must be included in the ET1.

Early conciliation is:

voluntary – an employee or ex-employee is required to contact Acas before making a tribunal claim but they do not have to take part in attempting to resolve this through Acas. If an employee or ex-employee does agree to early conciliation, either the employee or the employer can stop the process at any time
free – there is no charge to use the Acas early conciliation
confidential – what an employee or ex-employee tells Acas can only be discussed with the employer if agreed that it will be helpful in trying to settle the claim. Whatever is discussed during early conciliation, it cannot be used by either party outside of the conciliation process or at a tribunal hearing.

Do you need legal representation?

There is no obligation to have a representative in early conciliation.

If an employee or ex-employee appoints a representative to act for them (eg Marjon Law), Acas will conciliate with the representative. The employee or ex-employee will become the Prospective Claimant and the employer the Prospective Respondent.

Any settlement that is agreed upon between the parties will be set out in an agreement called a COT3, which is legally binding and will normally prevent the Prospective Claimant from pursuing a claim that is the subject of early conciliation.

Are there any exceptions to early conciliation?

The requirement to notify Acas applies to nearly all intended employment tribunal claims with a small number of exemptions. For example, there are a number of individuals making a claim against the same employer and one person has already made a request to Acas in the same dispute, the other potential claimants may not have to.

Further information about exceptions can be found on the Acas website at www.acas.org.uk/earlyconciliation. Despite an exemption applying, an employee or ex-employee can still choose to use early conciliation if they wish.

How is a request for early conciliation made?

The easiest way to start Acas early conciliation is to complete an online Early Conciliation Notification Form. Alternatively, if an employee or ex-employee cannot access the internet, they can telephone Acas on 0300 123 1122.

The Early Conciliation Notification Form asks for basic contact details about the employee and the employer. If a claim is subsequently made to an employment tribunal the name of the employer on the ET1 will need to correspond to the name on the Early Conciliation Notification Form. If the names are different this could lead to the claim being rejected by a tribunal.

Employers can also use early conciliation and start the process if they believe there is a workplace dispute which is likely to lead to a tribunal claim.

How can early conciliation help you?

The benefits of Acas early conciliation are:

the parties may get a better idea of the strengths and weaknesses of a potential claim, and explore the options for resolving the potential claim
if a potential claim can be settled, this will avoid the time, expense, risk and stress of an employment tribunal claim
the terms of any settlement can include terms that a tribunal cannot make (eg a reference or an apology)
if the Prospective Claimant is still employed it could increase the chance of avoiding a permanent breakdown of the employment relationship – if that is what the Prospective Claimant and the Prospective Respondent want to achieve
many cases can be dealt with relatively quickly compared to a tribunal claim.

What are the boundaries of the conciliator’s role?

An Acas conciliator cannot:

advise either side whether to accept or make any proposals for resolution
take sides and must be totally impartial
take a view on the merits of a claim or advise whether a claim should be made.

How long will early conciliation last?

The period of early conciliation is intended to be up to 6 weeks.

What happens if Acas conciliation is successful?

If a resolution is reached through Acas, the conciliator will record what has been agreed in the COT3. The COT3 is a legally binding contract preventing the Prospective Claimant from being able to make a tribunal claim in relation to the settled dispute.

If the Prospective Claimant and/or the Prospective Respondent has appointed representative to act on their behalf (eg Marjon law), the representative will normally sign the COT3, which is a formal record of the agreement.

What happens if Acas conciliation is unsuccessful?

The Acas conciliator will issue an early conciliation certificate which will include a unique reference number. The Prospective Claimant will then be free to make an employment tribunal claim.

Please see web page employment tribunal claims.

A copy of this formal acknowledgment that early conciliation has ended will also go to the Prospective Respondent but only if they have been involved in the process.

Does early conciliation affect the time limit to make a tribunal claim?

When an employee or ex-employee (or their representative) contact Acas this will pause the time limit for presenting a claim to a tribunal (known as Day A). This pause can be for up to 6 weeks. The time limit will start to run again when the Acas early conciliation certificate is received (known as Day B). If the early conciliation certificate is sent by email it is deemed to have arrived that day and if sent by post it is deemed to have arrived 2 days after it was sent.

For example:

dismissal: 20 June
Day A: 22 July
Day B: 03 September
expiry of limitation period: 19 September
last day to present ET1: 31 October (ie the period beginning with the day after Day A and ending with Day B = 42 days)

If early conciliation ends after the limitation period has expired, the Claimant will have 1 month after Day B to make an employment tribunal claim.

If early conciliation is started after the limitation period has expired any subsequent employment tribunal claim will be out of time. On this basis, an employer may well refuse to engage with the early conciliation process.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.