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.

If an employee or ex-employee brings a claim against an employer they will be called the Claimant. The employer defending the claim will be called the Respondent.

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. Once started, either the Claimant or the Respondent 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 Respondent 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 a solicitor), Acas will conciliate with the representative. The representative may agree a settlement on behalf of the Claimant. Such settlements are set out in an agreement called a COT3, which is legally binding and will normally prevent you 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 individuals making a claim against the same Respondent 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 Claimant and the Respondent. 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?

The benefits of Acas early conciliation are:

• the Claimant may get a better idea of the strengths and weaknesses of a potential claim, and explore the options for resolving the claim
• if a potential claim can be settled with the Respondent, 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 Claimant is still employed by the Respondent it could increase the chance of avoiding a permanent breakdown of the employment relationship – if that is what you and the 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 cconciliator 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 a COT3 used to describe the Acas settlement.

The Claimant or the appointed representative acting on their behalf (eg a solicitor) will sign this as a formal record of the agreement. The COT3 will be a legally binding contract that means and the Claimant will not be able to make a tribunal claim in relation to the settled dispute.

What happens if Acas conciliation is unsuccessful?

The Acas conciliator will issue an early conciliation certificate which will include a unique reference number.  The 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 Respondent but only if they have been involved in the process.

Does early conciliation affect the timescale to make a tribunal claim?

When the Claimant (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, a Respondent 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.