ACAS is a publically funded, independent and impartial organisation, mandated to liaise with both parties to an employment dispute to try to achieve a settlement. It also has many other functions, including supporting good relations between employers and employees, offering training and providing useful tools for the workplace.

However, one ACAS function that both employers and employees should definitely pay attention to is the early conciliation (EC) process. Since 2014, this ACAS process must be followed by claimants before they can begin the majority of employment tribunal proceedings.

The types of claims covered by EC are referred to as “relevant proceedings” and include (in addition to others) unfair dismissal, breach of contract, unlawful deduction from wages, discrimination, equal pay, protection from detriment and rights to time off.

What to expect during the EC process?

The EC process is fairly straightforward, but can be highly effective. According to the ACAS Annual Report 2018/19, ACAS received over 132,000 notifications from potential tribunal claimants and of this number, only 36,351 employment tribunal claims were actually begun, meaning that 73% of notifications handled by ACAS did not progress to employment tribunal claims.

If an employee wishes to issue an employment tribunal claim for any “relevant proceedings”, they must first comply with the early conciliation requirement. This provides an opportunity to resolve the dispute outside of the employment tribunal and without the parties having to resort to what can be costly and lengthy employment tribunal proceedings.

Step 1: The prospective claimant submits an EC form or telephones ACAS, who will complete the form on their behalf.

Step 2: After submitting the form, ACAS will make reasonable attempts to contact the prospective claimant.

If at this stage, the prospective claimant wishes to try to reach a settlement, the matter will be passed to an ACAS conciliator, who will take further details and ask for consent to contact the prospective respondent. If the claimant does not wish to settle however, ACAS will issue an EC certificate, the number of which will need to be quoted on the employment tribunal claim form when the claimant sends that form to the employment tribunal. The EC certificate confirms that the prospective claimant has complied with their obligation to contact ACAS and they are then able to present a claim to the tribunal. The certificate ends the EC process, but ACAS can still be involved at any later stage during the course of the employment tribunal claim to try to help the parties reach a settlement.

Stage 3: If, at stage 2, the prospective claimant wishes to attempt to reach a settlement, ACAS will contact the prospective respondent. If ACAS is unable to contact the prospective respondent, ACAS must conclude that settlement is not possible and will issue an EC certificate to the claimant.

However if the prospective respondent is contacted and is also willing to engage in conciliation, then the ACAS conciliator will have one calendar month from the date ACAS received the EC notification form in which to try to help the parties reach a settlement.

That period may be extended by a further 14 days if no settlement has been reached by the end of the initial month, but ACAS considers that there is a reasonable prospect of achieving a settlement and the claimant and the respondent both wish the period to be extended.

If, at any time during the EC period, either party states that they want EC to end, then ACAS will end the process and issue the EC certificate.

Throughout the EC process, the role of the conciliator is to talk through the issues with both sides to see if a solution can be found. Where appropriate they will also:

• explain the conciliation process
• explain the way tribunals operate and what the tribunal will take into account in deciding the case
• discuss the options available to both sides, including arbitration where appropriate
• help the parties understand how the other side views the case and explore with them how it might be resolved without a hearing, and
• tell them about proposals from the other side.

However, it is not ACAS’s role to:

• make a judgment on the case or the likely outcome of a tribunal hearing
• advise the parties as to whether to accept any proposals for settlement, or
• act as a representative, take sides or help parties prepare their case.

If no settlement has been reached by the end of the EC period, then ACAS issues the EC certificate.

What are the benefits of early conciliation?

1. The process can be simple and quick - ACAS offers a simple way of settling a claim, without the need to go to a tribunal.
2. Neutrality - the ACAS conciliator assigned to the case will be entirely neutral and will not provide advice to either party on the case. The process is as a go-between that can help break a deadlock when the parties are not willing to compromise in the first instance.
3. Cost - there is no charge for using the EC service.
4. Confidentiality - anything communicated to an ACAS conciliation officer in connection with the performance of their functions is not admissible as evidence in tribunal proceedings, unless the person who communicated it to the officer gives their consent.
5. Not just for employees - EC is also available to employers 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.
6. Provides an extension – the time limits for beginning tribunal claims are extended to take account of the EC process. Effectively, the time limit clock is stopped while the EC process is underway.