Do I have to do Early Conciliation before starting a claim?
Emphatically, yes. If you don’t try Early Conciliation first, your claim is likely to be struck out.
Before you can make a claim to the Employment Tribunal, you must complete an ‘Early Conciliation Notification’. We’re expert employment lawyers, so we can help you with that. This article tells you more…
What is Early Conciliation?
Early Conciliation is a service provided by the Advisory, Conciliation and Arbitration Service (ACAS). It’s free, impartial, and there to help employers and employees resolve workplace disputes. (The Labour Relations Agency (“LRA”) is the equivalent in Northern Ireland. All references to ACAS in this article should be read as the LRA if you are in NI).
If your case can be resolved without going to the Employment Tribunal, it saves everybody time, money and stress.
If you’ve been mistreated at work (such as being discriminated against or dismissed unfairly), and you want to make a claim at the Employment Tribunal, you must tell ACAS first.
If you want to try Early Conciliation, ACAS will contact your employer and ask them if they agree. If they do, the ACAS conciliator will act as a neutral intermediary and facilitate discussions between you and your employer to see whether a settlement can be reached.
This process normally lasts up to six weeks.
The conciliator will separately discuss the issues with you and your employer. In these conversations, they will give you an overview of the relevant law, discuss similar cases, help you explore the strengths and weaknesses of your case, and discuss possible options to help resolve the dispute.
If you and your employer reach a resolution, ACAS will record the terms of the agreement in a legally binding settlement document called a COT3. You and your employer must comply with these terms, as any breach may be enforced through the courts.
As you may know, there are strict time limits for making a Tribunal claim. For example, it’s three months less one day for unfair dismissal or discrimination. If your claim is about redundancy pay or equal pay, the deadline is six months less one day. During the Early Conciliation period, this time limit is paused. This is sometimes called the ‘Stop the Clock’ rule.
Once conciliation ends, the clock resumes, and you’ll have at least one month to file a Tribunal claim, starting from the date of the certificate. Depending on when early conciliation started, you may have slightly longer.
Early Conciliation has been compulsory in Great Britain since 2014.
Early Conciliation: Advantages
As mentioned above, Early Conciliation is free. So, if you and your employer can resolve the dispute this way, it saves everyone the cost and hassle of a tribunal claim.
ACAS is impartial, meaning that they don’t take sides. They are totally independent. They take a neutral position and listen to you and your employer equally, with the aim of reaching an agreement between you.
As you’d expect, the process is completely confidential.
It’s important to know that ACAS is not connected with the Tribunal service. If you go on to make a claim, your Early Conciliation discussions are not disclosed to the Tribunal, and engaging in the ACAS process won’t affect the outcome of your claim. The Tribunal won’t even be told whether conciliation was attempted or not.
Early Conciliation saves time. It usually takes just six weeks, while a tribunal claim can take months.
In an attempt to find a solution, the ACAS conciliator will speak to you and your employer separately over the phone. This means you don’t need to travel anywhere.
Going to the Tribunal involves complex paperwork and technical legal arguments. With Early Conciliation, there is not so much preparation required.
It’s also less stressful than the Tribunal process, which is a bit like going to court (and that’s something many people find intimidating).
It’s a voluntary and flexible process. When both parties willingly engage in talks through ACAS, you’re more likely to reach an amicable resolution.
And finally, ACAS offers a range of potential outcomes. For example, as part of the negotiations, you might get a useful reference or even a satisfying apology from your employer in addition to a financial settlement. These ‘extras’ are things which the Tribunal can’t insist upon.
Early Conciliation: Disadvantages
Because the Early Conciliation process is designed to facilitate settlement, there are not many drawbacks. However, there is no guarantee of success. Remember, if you fail to reach agreement through ACAS, you can still issue a Tribunal claim. In this case, ACAS will give you an early conciliation certificate which includes your unique reference number to quote at the Tribunal.
The conciliator won’t make any recommendations about what you should do, nor will they help you prepare your case for Tribunal, or make any judgement on how the case could turn out – that’s what we can do for you.
ACAS are asked to deal with a large number of disputes, so it’s important not to cause any delays that shorten the six-week window.
Once you’ve signed the COT3 agreement, you can’t pursue a Tribunal claim about the same dispute.
Do I have to go through Early Conciliation?
You must tell ACAS you intend to make a Tribunal claim, but you don’t have to go through Early Conciliation if you don’t want to.
If you go on to issue a claim, you can still talk through ACAS up to and during the Tribunal proceedings, right up to the point that a judgment is made. This is known as conciliation, rather than early conciliation.
Does my employer have to agree to Early Conciliation?
It’s highly recommended, but not mandatory, so they don’t have to agree. If your employer thinks your claim isn’t valid, or they want to deal with the matter formally, they may refuse to enter into ACAS settlement discussions with you.
If so, ACAS will give you an early conciliation certificate showing a unique reference number. You’ll need this number to proceed with a claim if that’s what you decide to do.
Other alternatives to ACAS Early Conciliation include mediation and arbitration. Your employer might suggest those approaches instead. As employment lawyers, we can help with that too.
What this means to you
When dealing with a workplace dispute, it’s always wise to take professional legal advice to ensure you act in your best interests.
The first step is to attempt to resolve the issue informally, by having an honest conversation with the person involved, or by going to your line manager, HR Department or Union representative. This can often be the quickest and most effective way of resolving issues.
For serious or ongoing matters, check your staff handbook or employment contract and follow the written process that explains how to lodge a formal grievance. That means your employer must investigate your complaint and take steps to resolve it.
If that doesn’t work, it’s time to contact ACAS.
You can approach us for advice and support at any stage, as well as later in the process. We only act for employees, not employers, and have lots of experience in this area. We’ll be happy to help.
Related reading
Here are a few of our related articles which you might find useful:
- ACAS Early Conciliation (this is one of our old posts, so please ignore the mention of fees as they no longer apply)
- I need help with an employment law issue
- How to win an Employment Tribunal case
- How much will I win at Tribunal?
- What does an employment law solicitor do?
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