Early conciliation is a service provided by the Advisory, Conciliation, and Arbitration Service (ACAS) that became compulsory for anyone wishing to bring a tribunal claim in the UK.
It is important that prospective claimants and respondents understand how early conciliation operates, what their obligations are, and the timescales involved.
What is ACAS early conciliation?
Early conciliation is a free, confidential, and voluntary process designed to assist in the settlement of employment disputes without the parties going to an employment tribunal.
If an employee (or a former employee) wants to make a tribunal claim, then they legally must make an early conciliation notification to ACAS, unless there is some form of exemption. A tribunal claim application will be rejected if the worker has not been referred to ACAS and an early conciliation certificate has not been issued.
When early conciliation requirements have been adhered to and a certificate has been issued it will state a unique reference number. This reference number must be entered on the tribunal claim form (ET1).
How does ACAS early conciliation work?
When an employment dispute arises, either the employer or the employee can contact ACAS to commence the early conciliation process. Following this, ACAS will assign a conciliator who will act as a neutral third party to facilitate communication between the parties involved. The conciliator will:
- Provide information on the process;
- Assist parties to understand the other side’s views on the issues of relevance;
- Encourage the use of internal procedures; and
- Suggest and discuss possible areas of resolution.
Essentially, the role of the conciliator is to assist them in reaching a mutually agreeable solution and avoid the need for employment tribunal proceedings.
The early conciliation process starts with the conciliator contacting the parties to gather information about the dispute. They then engage in separate discussions with each side to ascertain their points of view and any potential areas of agreement.
If an agreement is reached during the process, the terms are documented in a legally binding agreement called a COT3. This agreement can be enforced if either side fails to comply with its terms.
Should parties fail to reach a resolution or choose not to engage in early conciliation, ACAS will issue an early conciliation certificate which is required to proceed with an employment tribunal claim.
ACAS early conciliation aims to promote early resolution, reduce substantial costs and the time associated with formal legal proceedings. It also provides an opportunity for disputing parties to maintain a working relationship.
Are there any penalties for failing to engage with the process?
No, there are no penalties for either party. It is an entirely voluntary process. The tribunal will not be made aware of engagement/lack of engagement in the process.
How long does ACAS early conciliation last?
Early conciliation has a statutory time limit that sets a maximum duration for the process. The key timeframes involved are:
- Notification period – this is the deadline for contacting ACAS and starting the early conciliation process. It typically lasts for three months (or three calendar months) from the date of the alleged incident or issue that led to the dispute.
- Early conciliation period – once initiated, ACAS has up to six weeks to try and conciliate before they must issue the early conciliation certificate if no agreement has been reached.
- Certificate period – should a resolution not be reached during early conciliation, ACAS issues an early conciliation certificate, which is generally issued within two working days after the end of the conciliation period. The certificate is valid for one month from the date of issue.
It’s important to note that the actual duration of the early conciliation process can vary depending on different factors, including the complexity of the dispute, the availability of the parties, and the progress made during negotiations.
If an agreement is reached, the conciliation process can conclude straightaway. However, if no resolution is reached and the claimant wishes to proceed to an employment tribunal, they must ensure that they file their claim within the relevant time limits set by the tribunal.
Do you need legal representation for ACAS early conciliation?
Legal representation is not needed for ACAS early conciliation. It is designed to be accessible and allows all parties to participate without legal representation if they choose to do so.
As mentioned above, parties involved in early conciliation can discuss and negotiate the resolution of their dispute with the assistance of a neutral conciliator who does not provide legal advice to either party.
However, parties involved in a workplace dispute are free to seek legal advice or consult with a trade union representative during the process if they choose to. Such advice can assist employers and employees understand their rights and options. It can also provide guidance on potential outcomes and help them make informed decisions during the process.
If an agreement is reached during the early conciliation, it is advisable for parties to obtain independent legal advice before signing any legally binding agreement to ensure they understand the implications and consequences of it.
Ultimately, the decision to have legal representation during early conciliation is up to the parties involved in the process.
What are the benefits of early conciliation?
The early conciliation process provides several benefits for both employers and employees involved in a workplace dispute, such as:
- Resolution without formal legal proceedings – it provides an opportunity to resolve disputes at an early stage, typically avoiding the need for formal legal action. It can save both parties the time, expense, and stress associated with pursuing an employment tribunal claim.
- Cost-effective – it is generally less expensive than going through formal legal proceedings, reducing legal fees and Court costs.
- Informal and flexible – as the process is voluntary and informal it allows the parties involved to engage in open discussions and discuss potential solutions. It provides the parties with the opportunity to shape the outcome of the dispute, instead of having a decision imposed on them by a tribunal.
- Preserves working relationships – early conciliation can help maintain working relationships between employers and employees. Due to the way early conciliation operates, it is possible to repair and rebuild trust, thereby providing a more positive working environment.
- Quicker and more efficient process – early conciliation is generally a much quicker process than formal legal proceedings, which can often take months or, in some cases, years to conclude.
- Confidentiality – negotiations between parties that take place during early conciliation are confidential. Therefore they allow the parties to openly explore potential resolutions without comments made being used against them in subsequent legal proceedings. Also, the confidential nature of early conciliation means that it can help avoid negative publicity that can arise from the legal proceedings and can protect the reputation of all parties.
How can we help
Laura Kearsley is a Partner in our Employment Law team.
For advice on ACAS early conciliation or any other related topics, please contact Laura or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.
Contact us