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Your client is not alone in being contacted regarding early conciliation, the precursor to an ET claim.
The Advisory, Conciliation and Arbitration Service, or Acas, has, since 6 May 2014, been actively involved with all ET claims at their earliest stage through the process of mandatory early conciliation. The purpose of this process is to try and reach an agreement or settlement between the parties involved to avoid going to ET.
Acas’s recently released annual report for 2022–23 reveals a sharp increase in the use of these services compared to 2021–22. Acas was involved in over 600 collective disputes in the period, an increase of 22%, achieving a resolution in 91% of cases. This success rate of the conciliation service might make it more appealing to your client than going all the way to ET.
What is early conciliation?
Before lodging an ET claim, the employee must contact Acas who will offer a maximum six-week early conciliation to try to help settle the dispute without the need to lodge a tribunal claim. Failure to do this means they cannot bring a claim. Early conciliation covers most employment disputes, such as ordinary unfair dismissal, redundancy payments, discrimination, rights to time off and family-friendly rights.
However, whilst early conciliation is mandatory, the process is voluntary. Whilst the employee is legally required to contact Acas first neither party is obliged to participate in the conciliation and can stop whenever they wish, either bringing it to an end early (if both sides and the conciliator agrees) or waiting to the end of the six-week period.
Your client should be assured that this process is confidential. Anything they tell Acas can only be discussed with the other party if they agree that it would be helpful in trying to settle the case. This means that settlement discussions cannot be used by either party at an ET hearing, which is good news, especially as tribunals are heard in public.
What happens once Acas have been in touch?
An Acas conciliator will be allocated to the case, and it will be them who has contacted your client. Their role is to be the go-between, between your client and the employee, to try to reach an agreement that satisfies the employee enough to no longer pursue the claim. This is usually through paying out in a settlement. If your client manages to agree a settlements, the conciliator will draw up a ‘COT3’ that outlines the agreement and the amount to be paid, and confirms that the employee will not bring a claim on this issue. This document will need to be signed by both parties.
The benefit of this route, as opposed to a privately engaged legal representative, is that neither party has to pay for the conciliator: they are funded by Acas. As a result, your client can avoid the fees associated with representing them and preparing a settlement agreement (which has the same effect as a COT 3) for the case. However, if the conciliation period is unsuccessful, the employee can go straight to ET afterwards, whereas if there was an attempt at a private settlement via legal representation there would still be a need to enter early conciliation, giving the employer a second chance at negotiations.
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