10 years of ACAS early conciliation

What is ACAS early conciliation?

ACAS early conciliation is a mandatory step a claimant must go through before they can present a claim in the employment tribunal. The early conciliation procedure was implemented in 2014 with the aim of resolving employment disputes without going to the tribunal, and so reducing the overall number of tribunal claims.

For most claims a claimant must bring an employment tribunal claim within three months of the date of the issue complained about (e.g. date of termination or date of discriminatory act). The early conciliation period must be commenced within this time frame and doing so puts the tribunal claim time limit on hold until the conclusion of the process.  The claimant then has at least one month after the end of the early conciliation period to issue a claim in tribunal.

Whilst the number of tribunal claims has reduced since the introduction of early conciliation, it is helpful for employers to consider the advantages and disadvantages of early conciliation in the event that they receive notification of the same.

Advantages

• Collaborative – If both parties agree to conciliate, an ACAS caseworker will speak to the parties to try and reach an agreement without having to proceed to the tribunal
•  Quicker and cheaper – Engaging with the early conciliation process is a free and quicker alternative to defending an employment tribunal claim which can take a year or two to be determined (due to lengthy backlogs). An employer may wish to participate in early conciliation to avoid management, legal and HR costs which would otherwise be incurred in preparing and defending a claim
• Voluntary and flexible – Once an employer is notified of an employee’s intention to begin the early conciliation process, the employer has the flexibility to respond and can either agree to participate or refuse to engage

Should an employer choose to proceed with early conciliation, they can do so with or without legal representation. There is no penalty for the failure to participate by either party as it is a voluntary process.

•  Confidential and certain – If the parties reach a conclusion or agreement during early conciliation, a COT3 Form will be drawn up to formalise the agreed terms. If a settlement is reached during early conciliation, the effect of settlement is such that the employee will not be able to later bring a claim to the employment tribunal about any of the dispute(s) covered in the early conciliation. This provides employers with a level of certainty in knowing that they will not later be pursued in the tribunal for the issues negotiated during early conciliation

A formal settlement can protect the employer from negative publicity which may follow if a claim was issued in the employment tribunal. This is because any settlement is confidential between the parties whereas a tribunal hearing is open to the public and a Judge will give a formal written judgment.

Disadvantages

 Early conciliation may not be beneficial in all situations. For example, if an employer is satisfied that a claimant’s claim is meritless and the claimant has no intention of pursing a claim, there may be no incentive to engage with early conciliation

There is no guarantee an agreement will be reached during early conciliation. Some employers may wish to take a robust stance at an early stage and decide not to enter into settlement negotiations and see if the prospective claimant will actually issue the claim

Claimants do not have to particularise their complaints for the purposes of early conciliation. This can make it hard for employers to understand the complaints and to assess their merit.  In which case the employer can feel like they are negotiating ‘in the dark’.

Key takeaways for employers

Early conciliation can be useful for employers as it gives advance warning of a potential claim. The negotiations can flush out what the claimant is looking for and how they value their claim. But many employers will wait to see if the claimant will pursue a tribunal claim and precisely what claims will be pleaded, before determining their response to the claim.

If you require advice or assistance with the early conciliation process or employment tribunal claim(s), please contact a member of our Employment team.