Understanding Acas Early Conciliation Process

The Acas Early Conciliation

What is Acas (Advisory, Conciliation and Arbitration Service)?

Acas is an independent body funded by the UK government that offers conciliation services to parties involved in employment tribunal claims. Beyond conciliation, Acas also provides advice and guidance on workplace issues to both individuals and employers.

What is Acas Early Conciliation (EC)?

Acas early conciliation (EC) is a mandatory system of pre-claim conciliation that applies to most employment disputes. Under this procedure, one of the parties must contact Acas before a claim can be issued in the employment tribunal, unless one of the limited exceptions applies. A flowchart outlines the stages of this mandatory procedure that prospective claimants must follow if they wish to issue tribunal claims.

Addressing any Misunderstanding about Acas

A common misunderstanding about Acas is that the organisation itself provides legal advice or resolves workplace disputes. They do not. The Acas structure is designed to limit the number of cases that go to the Tribunal. They are a mediation service that aims to resolve disputes. Many people believe it is a way of getting a settlement. But common sense dictates that no employer will willingly hand over a £50,000 settlement to a disgruntled employee without a fight. While Acas is a reputable authority on employment law, it is not a substitute for legal representation or a tribunal; rather, it is a service designed to help parties reach their own resolutions and understand their rights and responsibilities.

Does Acas Work?

Use Acas the right way. Start the Early Conciliation process. You must if you want to go to the Tribunal. You will have heard that Acas early conciliation pauses time and gives you an extra month to bring a claim.

Will my Employer settle if I go to Acas?

Unlikely. But you should understand the employer is not likely to settle without a fight. If you have an upheld grievance, the employer may attempt to pay. But it is unlikely that you will get what you want. A commercial offer at this stage is £6,000 (this reflects the initial cost of defending the claim). Use the one month to draft the Particulars of the Claim. I can help with this. Now try to negotiate. If the employer does not want to settle or is not meeting your expectations, launch a claim within the time limits. This places real pressure on the employer to decide on a settlement. Where there is a chance the employer will have to pay large damages as a remedy in your claim, then settlement becomes a big factor. Use Acas effectively to achieve your desired outcome. Do not rely on Acas to resolve your dispute or get you tens of thousands of pounds in settlement. You must have a strategy.

Benefits of Acas Conciliation

Acas conciliation offers several potential advantages for resolving employment disputes:

• Simplicity

  It provides a straightforward means of settling a claim.

• Neutrality

  An impartial conciliator can help break deadlocks in emotionally charged situations.

• Speed

  Once Acas confirms a settlement to the tribunal, the case is immediately removed from the hearing list.

• Cost-effectiveness

  There is no charge for the services of an Acas conciliation officer.

• Confidentiality

  Generally, anything communicated to a conciliation officer is not admissible as evidence in tribunal proceedings without consent. However, there are exceptions, such as in Vernon v London Borough of Hammersmith and Fulham, where an employer's email to Acas was found admissible and amounted to victimisation.

• Non-disclosure

  Acas is broadly prohibited from disclosing information related to a worker, employer, or trade union obtained during conciliation, with statutory exemptions for consent, redaction, or court order.

• Effectiveness

  Acas successfully resolves a significant portion of disputes. For instance, in 2023/2024 and 2024/2025, Acas resolved 39% of EC notifications. Furthermore, over three-quarters of unresolved disputes that proceed to a tribunal claim are later resolved via Acas before a final hearing. Conciliation remains available even up to the day of the tribunal hearing.

Early Conciliation (EC)

Overview and Statutory Framework EC became mandatory for claims presented on or after 6 May 2014, following its introduction on 6 April 2014. The statutory framework for EC is primarily set out in Sections 18A to 18C of the Employment Tribunals Act 1996 (ETA 1996), as inserted by the Enterprise and Regulatory Reform Act 2013 (ERRA 2013). These sections detail the EC procedure, the availability of conciliation at the request of prospective respondents or in exempt proceedings, and conciliation services once a claim has been issued. The Employment Tribunals Procedure Rules 2024, effective from 6 January 2025, also govern the process.

Relevant Proceedings

Claims Covered by EC. Most prospective claimants must comply with the EC requirement before presenting their claim to a tribunal. Claims covered by EC, referred to as "relevant proceedings," include:

• Unfair dismissal.

• Breach of contract.

• Unlawful deductions from wages.

• Discrimination and equal pay.

• Protection from detriment.

• Rights to time off.

• Claims under Regulations 12(7) and 16(1) of TUPE (failure to provide employee liability information and failure to inform and consult).

• Claims concerning the right to be accompanied at disciplinary and grievance hearings under Sections 10-13 of the Employment Relations Act 1999 (ERelA 1999).

Exemptions from the EC Requirement

A prospective claimant may present a claim in relevant proceedings without having participated in EC in specific, prescribed cases. These exemptions include:

• Where a claimant (A) brings proceedings on the same claim form as another person (B) who has already complied with the EC requirement for the same dispute.

• Where a claimant (A) institutes relevant proceedings on the same claim form as proceedings which are not relevant proceedings.

• Where the respondent has contacted Acas first regarding the dispute, and the claimant's claim relates to that dispute, and the claimant has not yet provided information to Acas.

• Where an application for interim relief accompanies an unfair dismissal claim, an employment tribunal should not reject an entire claim form if it contains both exempt and non-exempt claims; only the non-exempt claims should be rejected for EC non-compliance.

• Proceedings against the Security Service, the Secret Intelligence Service, or the Government Communications Headquarters.

Even if proceedings are exempt, a prospective claimant may still contact Acas to request conciliation services, where a conciliator will try to promote a settlement to prevent proceedings from being issued. EC Procedure Steps The EC procedure involves four key steps:

Step 1: Prospective Claimant Submits EC Form or Telephones Acas

• A prospective claimant initiates EC by submitting an online or hard copy EC form, or by telephoning Acas.

• The form must include the claimant's and prospective respondent's names and addresses. Acas may contact the claimant to obtain missing information or correct errors.

• Since December 2021, a single EC form can name more than one prospective respondent.

• Claimants are not required to provide details on the nature of their claim(s) on the EC form.

• A representative can submit the EC form on behalf of the claimant and liaise with Acas.

• Claimants can choose whether to actively participate in conciliation; an EC certificate will be issued even if they opt not to try the conciliation service, as long as the required party details are provided.

Step 2: Acas Contacts the Prospective Claimant

• If the claimant wishes to participate, Acas will confirm receipt and provide a telephone number for the claimant to call. During this call, Acas explains the EC process and gathers further information.

• Acas must make "reasonable attempts" to contact the claimant. If contact is unsuccessful, Acas will conclude settlement is not possible and issue an EC certificate.

• If the claimant does not wish to conciliate, Acas will issue an EC certificate, allowing the claimant to proceed with a tribunal claim.

Step 3: Acas Contacts the Prospective Respondent

1. When the claimant consents, the conciliator will make "reasonable attempts" to contact the prospective respondent(s) to determine their willingness to participate.

2. If contact is unsuccessful or the respondent declines, Acas will issue an EC certificate.

3. Acas maintains a database of contacts for large employers to ensure that conciliators reach the appropriate person, often within the HR department.

Step 4: Where Both Parties Wish to Conciliate: The EC Period

1. The EC period is six weeks. As of 1 December 2020, there is no possibility of an extension.

2. If the conciliator concludes that a settlement is not possible at any point during this period, or if the period expires without a settlement, Acas will issue an EC certificate.

3. A conciliator may continue to promote settlement after the EC period ends, or after proceedings have been issued, if both parties request it or if there's a reasonable prospect of settlement.

Outcomes of Early Concliation

Where the Parties Reach a Settlement

If a settlement is reached, it may not be necessary to issue an EC certificate. However, if only part of the dispute is settled (e.g., outstanding wages but not unfair dismissal), an EC certificate will be issued for the unresolved issues, providing a reference number for the claimant to commence their tribunal claim.

• In unfair dismissal cases, a conciliator can promote reinstatement or re-engagement. Financial settlement is promoted if reinstatement/re-engagement is not desired or practicable.

• Where Conciliation Fails - If the EC period expires without settlement, Acas issues an EC certificate. It is crucial for claimants to remember that the limitation period for their claim restarts running once the EC certificate is issued.

The EC Certificate

The EC certificate is a critical document for proceeding with a tribunal claim.

• When Issued

  An EC certificate is issued when Acas cannot contact the claimant or respondent, either party is unwilling to conciliate, a party withdraws from conciliation, the conciliator believes settlement is not possible, or the EC period expires without settlement. Acas will issue an EC Certificate even when a COT3 (Acas settlement form) only settles part of a dispute, allowing the claimant to pursue unresolved issues.

• Information in the Certificate

  It contains the names and addresses of the prospective claimant and respondent, the date Acas received the EC form/call (Day A), the EC reference number, and the date of issue (Day B). The respondent's address does not have to be a registered office; an address where they conduct business is sufficient.

• Who Receives a Copy

  Acas sends a copy to the prospective claimant. If Acas had contact with the prospective respondent(s) during EC, they also receive a copy. If there is no contact with the respondent, they will not receive a copy and may be unaware of the EC or the impending claim, which could potentially hinder their ability to calculate time limits.

• How it's Sent and Deemed Received

  EC certificates are sent by email or, if not possible, by post. An email is deemed received on the day sent, while a postal certificate is deemed received on the day it would be delivered in the ordinary course of post. The claimant's remaining limitation period begins the day after receipt of the certificate. An incorrectly supplied email address resulting in non-receipt may indicate that the certificate was not properly issued, and the time period would not begin to run. However, if a correct email address is given and the certificate was issued by Acas, time will likely run even if the claimant did not receive it.

Acas Services Available to Prospective Respondents

Prospective respondents can also contact Acas to request conciliation services if they believe relevant proceedings may be issued against them. The conciliator will attempt to promote a settlement to prevent proceedings. However, participation in respondent-initiated conciliation does not automatically extend the limitation period for any claim the prospective claimant may wish to bring. If the prospective claimant later initiates the formal EC procedure, this will trigger the EC process and its associated limitation period extensions.

Bringing a Tribunal Claim and EC Compliance

A tribunal claim (ET1) may be rejected if it lacks an EC number, confirmation that the claim is not a relevant proceeding, or confirmation that an EC exemption applies. An employment judge will further consider rejection if the ET1:

• Institutes relevant proceedings but lacks an EC number or exemption confirmation.

• Incorrectly states that an EC exemption applies.

• Contains a different EC number than on the EC certificate.

• Gives a different claimant or respondent name than on the EC certificate.

The procedure prior to the issuing of an EC certificate should not be subject to criticism and examination by the parties or the employment tribunal, as the focus is on the existence of a valid EC certificate.

New Claims Arising After EC Concluded

If new claims arise after EC concludes but before the ET1 is presented, claimants are not required to go through EC again for these further complaints, as long as the ET1 includes both claims arising before EC and those after. The EC requirement only involves providing names and addresses, not claim details.

New Claims Arising After Presentation of Claim

If new claims arise after the ET1 has been presented, it is a case management issue for tribunals to decide whether to allow an amendment to the existing ET1 to include them without a new EC number. The EAT has stated that the EC obligation applies to a "prospective claimant" and "a matter," not each "cause of action" or "claim". However, the tribunal may refuse an amendment if the new claim is significantly different or unrelated, potentially requiring a new EC. Examples of "same matter" claims include victimisation following discrimination, or a disability discrimination claim following a disability-related detriment claim. Cases where the connection is merely the same parties (e.g., whistleblowing and unrelated unpaid wages) typically fall "on the other side of the line" and may require further conciliation.

Adding or Substituting Respondents After Presentation of Claim

It is generally not necessary for a claimant to undergo EC again before applying to add or substitute a respondent. This is considered a case management issue. However, tribunals have discretion and may refuse to add a respondent if there was a complete failure to comply with EC in respect of that specific respondent, even if due to a genuine mistake.

Limitation Periods

Extending Time to Bring Claims

The limitation periods for relevant proceedings are extended to account for the EC period. This is achieved through amendments to primary and secondary legislation. The EC period was increased to six weeks from 1 December 2020, with no possibility of extension.