In most cases, employees will be required to contact the Advisory, Conciliation and Arbitration Service (Acas) before making an Employment Tribunal claim.
But what does this intermediary step mean for employers? And how does the process work? We explain everything you need to know below.
What is mandatory Acas early conciliation?
In May 2004, the government made it a requirement that if a person wishes to submit a claim to an Employment Tribunal, they must first refer the dispute to Acas for early conciliation.
This provides an opportunity to resolve the situation outside of court, without resorting to costly and lengthy court proceedings, which is great news for employers.
Is it compulsory for employees to notify Acas?
Yes; however, the claim form does outline certain early conciliation exemptions. Employees seeking to bring a claim are required to provide the Tribunal with a number or an exemption category, if they believe one applies, before the claim can be considered presented. The Tribunal will then seek to verify the information provided.
What’s the process?
After submitting a notification form via the Acas website, the employee will receive an email acknowledging receipt of their notification. They will then be asked to contact Acas directly so that it can verify the details given, ask some basic questions about the claim and explain the process.
If the employee agrees to take part in early conciliation, and Acas believes it can assist with the matter, then the claim will be forwarded to an Acas conciliator, who will talk through the issues with the employee (or their representative), as well as with you, to try and reach a resolution.
Acas Annual Report 2018/19: Surge in claims
According to Acas’ latest report, the demand for its early conciliation services is consistently high as a result of the Supreme Court’s decision to scrap Employment Tribunal fees back in 2017. This had led to a notable increase in early conciliation notifications from around 1,700 a week to around 2,500 a week.
Some of the salient points to note from the report are:
- Acas received over 132,000 notifications in 2018/19, up 21% on the previous year. (Remember, employees must notify Acas before lodging a claim – in other words, this figure shows that the number of employees intending to bring a claim has increased).
- Of this number, 36,531 Employment Tribunal claims were actually lodged. This is up from 26,012 in 2017/18 and 18,647 in 2016/17. Reports suggest this increase in claims is putting a strain on the Employment Tribunal system.
- 73% (92,000) of notifications handled by Acas resulted didn’t progress into an Employment Tribunal claim (either because a formal or informal resolution was reached by the parties or because the claimant otherwise reconsidered their intention to proceed).
- Of the cases which did progress into an Employment Tribunal claim, Acas conciliation resulted in settlement in 51% (14,700) of cases, with a further 18% (5,100) being withdrawn by the claimant.
Acas chair Sir Brendan Barber described the year as “another very busy period for our individual dispute resolution service following the abolition of tribunal fees”.
6 things you need to know about Acas conciliation
No obligation to talk
While mandatory early conciliation requires employees to inform Acas if they intend to bring a claim, there is no requirement for the employee to actually enter into conciliation talks with their employer. If the parties do not wish to enter into conciliation talks, Acas will issue a certificate. This will contain an early conciliation number, which must be provided when the employee submits a claim to an Employment Tribunal.
If an employee is intending to take legal action against several respondents, they must present separate early conciliation forms for each prospective respondent to their claim.
You get a say
You are in control of the agreed outcome. The conciliator cannot advise parties to accept solutions put forward or impose their own judgment if you are not in agreement with what is proposed.
Not just employees
Early conciliation is not just available to employees; employers can also use early conciliation if they are concerned that there is a dispute or issue occurring within their workplace which is likely to result in Employment Tribunal proceedings being issued.
The Acas conciliation process normally takes up to a month. However, it can be extended by an additional 14 days with agreement between the parties.
If conciliation is successful, a COT3 agreement will be drawn up. This is a legally-binding contract between you and the employee that sets out the terms that have been agreed to settle the matter before it progresses to a claim before an Employment Tribunal. It is important to note that a COT3 agreement is not the same as a settlement agreement.
Concerned about employee claims?
With Tribunal claim numbers continuing to rise, it’s more important than ever to ensure your business is receiving the right support.
Ellis Whittam’s Employment Law specialists successfully defended 82% of claims in FY19, compared to the national average employer win rate of just 10%. You’re therefore over eight times more likely to win a Tribunal claim with us in your corner.
As well as increasing your prospects of success, we also reduce the risk of an Employment Tribunal claim by c.77% as compared to the national average.
To find out how our fixed-fee support can help to protect your business against legal risk, call 0345 226 8393.