Early Conciliation and Starting Employment Tribunal Claims

Please note: this page was updated in March 2021 to reflect changes to the Early Conciliation process in December 2020, so the page reflects these changes.

Starting an Employment Tribunal Claim

It is a requirement in nearly all situations before bringing a claim to an Employment Tribunal to contact ACAS to start the process of Early Conciliation. There is no requirement to try to actually conciliate, you are entitled to simply request the Early Conciliation (EC) certificate and proceed straight away to Tribunal.

YOU NEARLY ALWAYS NEED AN ACAS EARLY CONCILIATION CERTIFICATE TO BRING A CLAIM AND THIS PROCESS MUST BE STARTED NORMALLY WITHIN 3 MONTHS MINUS ONE DAY OF THE INCIDENT YOU ARE COMPLAINING ABOUT (e.g. your dismissal, the employer’s failure to pay wages or the act of discrimination).

The Process of Early Conciliation

Step 1: You must submit EC form or telephone ACAS

You need to submit an EC form online or by post, or by telephoning ACAS on 0300 123 1122, in which case the advisor can complete the EC form for you. ACAS also have access to interpreters, should you need one.

It is very basic and only takes a few minutes. You simply need to insert your name and address along with the name and address of your employer. It is usually a good idea to check your contract to see the exact legal name of your Employer (e.g. is it a franchise “trading as” such as Mr Andrew Smith t/a Dominus Pizza or a sole trader e.g. Ms Sarah Jones t/a The Red Lion Public House) as well as Companies House which is free to check online:

https://beta.companieshouse.gov.uk/?_ga=2.78491794.765937352.1574421707-276357668.1570481541

You will also need to supply the details for anyone other potential person you are claiming against such as the person responsible for the conduct being complained about. This is normally only relevant in discrimination matters.

If you are uncertain as to the identity of your employer, you need to complete a separate EC form for each potential Respondent. This is to avoid taking a claim against the wrong Respondent.

You do not have to provide any information on the nature of your claim or claims on the EC form.

Step 2: ACAS contacts you as the potential Claimant

After submission of an EC form you will receive a receipt by email or letter confirming the details you have provided. This will be followed by an email providing a telephone number for you to call ACAS. During the initial call, ACAS will explain the EC process, take some information about the claim and check whether you wish to participate in conciliation.

It is important that you make yourself available or contact ACAS yourself because otherwise the conciliator must conclude that settlement is not possible and he/she will issue an EC certificate which starts the clock ticking to submit your claim to the Tribunal.

If you decide to conciliate, the matter will be passed to an ACAS conciliator who will take further details of the matters in issue and ensure that you consent to them contacting the prospective respondent (employer).

If you do not wish to conciliate, ACAS will issue an EC certificate. This will confirm that you have complied with your obligation to contact ACAS and you will be able to present a claim to the tribunal.

Step 3: ACAS contacts your employer as the potential Respondent

If you wish to conciliate and consent to ACAS contacting your employer, the conciliator will make “reasonable attempts” to contact them as the prospective respondent t to see if they are willing to participate in EC. If they are unable to contact your employer or they do not want to conciliate, ACAS must conclude that settlement is not possible. In those circumstances, ACAS will issue an EC certificate.

Step 4: If you and your employer wish to conciliate: the EC period

Where both you and your employer (“the parties”) have agreed to conciliate, the conciliator will have up to 6 weeks to promote a settlement between them.

You or the respondent can pull out of conciliation at any point should you wish, ACAS will then issue an EC certificate.

If the EC period expires without a settlement being reached, ACAS will issue an EC certificate.

Where the parties reach a settlement

If you reach settlement then ACAS can draw up a legally enforceable agreement known as a COT3 Agreement. If the Respondent does not fulfil the terms of the COT3 Agreement e.g. they do not make the payment promised or they do not provide the agreed Reference then you can take further action against them relatively cheaply and quickly through fast track enforcement.

The Advantages of Early Conciliation

It is usually beneficial to explore Early Conciliation to see if settlement can be reached with your employer. You are not obliged to accept any offer and you can always make counteroffers.

The advantages include:

Simplicity.

ACAS can organise a simple means of settling a claim in a legally binding matter. If the Employer does not honour the Agreement then it is enforceable in exactly the same way as a Tribunal judgement. The method of enforcement is exactly the same.

Neutrality.

If you feel a little overwhelmed with the dispute or the procedure, the ACAS officer as a neutral go-between can help break a deadlock.

Speed.

Once ACAS advises a tribunal that a settlement has been reached any payment agreed as part of the settlement is normally made within a fairly short period e.g. 14, 21 or 28 days. Judgement in the Tribunal can take many months for payment.

Cost.

ACAS’s services are free.

Confidentiality.

Anything communicated to an ACAS officer cannot be used against you in tribunal proceedings unless you give your consent.

The Clock is “stopped” for the purposes of your Employment Tribunal claim.

You will always have at least one month from when Early Conciliation finishes (with the issuing of the Early Conciliation certificate by ACAS) to put your claim in to the Tribunal. Time spent engaging in Early Conciliation does not eat into the time limit for putting your claim in and gives you time to potentially obtain professional advice or prepare your claim.