ACAS: what you need to know about mandatory Early Conciliation

ACAS: what you need to know about mandatory Early Conciliation

You may well be familiar with ACAS as the main conciliation body in employment disputes. ACAS have only in the past got involved with disputes after claims have been issued and they have a good reputation in helping to resolve those disputes.

The government has been keen to drive down the number of claims issued at Employment Tribunals because of the costs involved in hearing them. They have already introduced Tribunal fees, which have brought claims down. Their next major step is to force all parties into contacting ACAS before a claim is issued so disputes can be resolved earlier and maybe without a claim being issued at all. This will be known as mandatory early conciliation and this must be done from 6th April 2014 onwards.

New early conciliation rules

This will be the four step procedure that you must follow before issuing an Employment Tribunal claim:

Step 1

Before issuing proceedings, the prospective Claimant must send ACAS “prescribed information” in the “prescribed manner”. The Claimant should finish all their internal appeals with the employer before doing this.

The prescribed information is the prospective Claimant’s and Respondent’s contact details only. The Claimant does not have to state what the claim is about.

The prescribed manner is the Early Conciliation form (“EC form”) (accessible via the ACAS website) and submitting it online, sending by post in a hard copy version (ACAS will date stamp the day it was received) or contacting ACAS and completing the form over the telephone with ACAS.

Step 2

ACAS will arrange for an officer to call the Claimant. This person will get other information such as length of employment, date of dismissal or incident. This person is allowed to tell the Claimant if they have time limit issues. But they are not supposed to tell the Claimant if they have a good claim or not.

Step 3

The officer then calls the Respondent and tries to promote settlement within 1 month from the date of receipt of the completed EC form. It is possible to extend this to 6 weeks as an absolute maximum if settlement is about to be reached. If settlement is reached then the officer will do an agreement in the same way ACAS currently do – using a COT3 form.

Step 4

If settlement is not reached then the officer will issue an Early Conciliation certificate (“EC certificate”) and the Claimant can issue their claim. The Claimant will need the unique reference number on this certificate to issue their claim and the claim will be dismissed if this number is not on it.

The EC certificate can be issued earlier than a month in the following circumstances:

  • The prospective Claimant/Respondent is unable to be contacted
  • The prospective Claimant/Respondent informs ACAS they are unwilling to negotiate
  • The parties both withdraw from the process during the initial month
  • If the conciliator believes that there is no reasonable prospect of achieving a settlement

In practice then, if the Claimant contacts ACAS, gives them the contact details but states that they do not want to negotiate then they have done enough to get their EC Certificate and then get their claim issued.

We think that now the Claimant will be forced to contact ACAS that a good number of them will want to talk through their claim with ACAS. They may want to settle rather than ignore ACAS and immediately issue their claim. This should have a great benefit for Respondents as well, as Claimants getting some early input into how much a claim is worth can help focus the Claimant early on and not be unrealistic when issuing the claim.

Exceptions to Early Conciliation

There are very few types of claims that are exempt from early conciliation, which are unlikely to apply to a standard employer. The exemptions that are most likely to be relevant are:

  • If the Claimant is part of a Group action and another Claimant has followed the above procedure
  • If the Respondent decides to get in contact with ACAS before the Claimant then the Claimant does not have to follow Step 1. But if the Respondent contacts ACAS, this does not “stop the clock” for limitation (see below). The Claimant can still contact ACAS to get the “stop the clock” benefit

Extension of time – the “stop the clock” provisions

Easily the most complicated part of the new procedures, and one that is likely to create more issues than it solves, is the issue of time limits and stopping the clock.

Most of the time limits in employment tribunal claims are 3 months less a day from when the incident or dismissal takes place. With these new rules, the time limit for issuing an Employment Tribunal claim is stopped when the EC form is received by ACAS and then restarts when the EC certificate is received by the Claimant. The provisions get more complicated if the EC form/EC certificate are dealt with by post rather than email but the general procedure is as follows:

  • The clock stops on the day after the Claimant sends the EC form (“Day A”)
  • If the Claimant completes the EC form by telephone or sends it by email then the clock stops the day after this. If the Claimant sends the EC form by using the post then the clock stops the day after ACAS stamp it as ‘received’ (ACAS should inform the parties of this date)
  • The clock starts on the day the Claimant receives the ET certificate (“Day B”)
  • If ACAS send the EC certificate by email then the clock starts this day. If ACAS send the EC certificate by post then the clock starts the day it is deemed to have been received i.e. two working days (even if received later than this)
  • The number of days that the clock was stopped for between Days A and B is added to the original limitation date
  • If the normal limitation period was due to expire anyway between Day A and one month after Day B then the limitation period is extended to one month after Day B only

Example 1

Employee X is dismissed on 14th February 2014, so normal limitation would expire on 13th May 2014. She submits an EC form on line on 21st February 2014. Conciliation does not work and she receives the EC certificate by email on 28th March 2014. Limitation is stopped between 22nd February 2014 inclusive until 27th March 2014 inclusive i.e. a period of 34 days. Normal limitation would have expired on 13th May 2014, so add 34 days to this and the new limitation date is 16th June 2014.

Example 2

Employee Y is owed wages last deducted on 8th April 2014, so normal limitation would expire on 7th July 2014. He contacts the ACAS conciliator on 26th June 2014 and completes an EC form over the telephone. Conciliation does not work and he receives the EC certificate by email on 25th July 2014. As normal limitation (7th July 2014) would have expired between Day A and Day B, limitation is extended to a month from receipt of certificate i.e. 25th August 2014.

What will the likely effect of this be in practice?

The pressure is more on the Claimant as the Claimant will lose the right to make a claim if they do not engage in this process at least at the start. The Claimant has an incentive to try and resolve the claim given that they now have to pay employment fees.

Employers may still prefer offering a settlement agreement rather than entering into an agreement via ACAS if they want to settle the matter right at the start and have the better protection of the settlement agreement. But ACAS conciliation is free and could appeal to an employer. The employer will also want some clarification of the type of claim to be issued and, if possible, the value right at the start, so they can make an informed decision on whether to settle. If ACAS were not involved, the Claimant may not have any proper knowledge of this.

We think this move will definitely benefit employers.

Will ACAS conciliation still be relevant after proceedings are issued?

ACAS will only be involved after proceedings if both the Claimant and Respondent request it. Or if the conciliation officer considers there is reasonable prospect of successfully negotiating a settlement after proceedings have been issued.

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