Can an employer refuse early conciliation?

When issues arise and someone is looking to make a claim to an employment tribunal, they first have to contact ACAS – known as “early conciliation”.

It was introduced to try and settle employment disputes earlier and reduce the number of claims being brought before an employment tribunal. But can you, as an employer, refuse ACAS early conciliation?

 

What is ACAS early conciliation?

To be able to lodge a valid tribunal claim, an individual must contact ACAS and provide their details, along with the name and address of the respondent.

Both parties can then decide if they want to enter discussions with the ACAS Conciliator to try and settle the issue.

If one or both sides refuses early conciliation with ACAS, ACAS will then issue an early conciliation certificate and the individual can then decide if they want to pursue a claim at the employment tribunal.

You don’t have to enter the early conciliation process, but employers should be aware that refusing early conciliation means they may lose out on the chance to settle a claim before it goes to an employment tribunal.

This means you could end up facing a range of additional costs when defending the claim. An employment tribunal is also a public forum, whereas early conciliation is a confidential and private process.

 

How does early conciliation with ACAS work for employers?

When an individual contacts ACAS and tells them that they want to make a claim to the employment tribunal, they will be offered early conciliation.

If the individual accepts and provides their consent for ACAS to contact the prospective respondent (usually the employer), then ACAS will contact them to ask if they want to take part in discussions.

If the employer refuses early conciliation, then ACAS will give the individual an early conciliation certificate – which they’ll need in to lodge a claim at an employment tribunal.

 

What is mandatory early conciliation?

Technically, there’s no such thing as mandatory early conciliation.

Individuals must provide certain information to ACAS before lodging a claim at an employment tribunal, but it’s voluntary to participate in the early conciliation process. Settlement discussions as part of early conciliation with ACAS will only take place if both parties agree to enter them.

There are time limits on when claims must be taken to the employment tribunal. Early conciliation extends the time that an individual must lodge a claim by, to give the parties time to take part in early conciliation, if they wish.

If an agreement is reached, then ACAS will document it in a COT3 form. Once agreed, it’s a legally binding document – so the individual would not be able to take this case to an employment tribunal.

 

What are the advantages and disadvantages of early conciliation for employers?

Advantages

• Avoids claims going to an employment tribunal. This can be costly in both time and expense.
• Claims can be settled confidentially.
• Matters can be dealt with and resolved relatively quickly – claims can take years to be heard at the employment tribunal.

Disadvantages

• The individual may have unrealistic expectations of settlement.
• Early conciliation may not result in a settlement, so an employer could have spent a great deal of time trying to settle a matter that still ends up in a tribunal.

 

What are the alternatives to early conciliation?

Employment tribunals

On the 29 July 2013, fees became payable in employment tribunals. However, because of the introduction of fees, the number of claims lodged at tribunal reduced significantly.

So, in 2017, fees were abolished as a result of a legal challenge. An individual can therefore lodge a claim at the employment tribunal without having to pay any fee for doing so. However, the process can be very long and expensive.

Settlement agreements

A settlement agreement is an agreement where an employee or worker and employer agree that the employee or worker will not pursue a claim against the employer. As a result of the individual agreeing to this, they would usually receive some form of compensation from the employer.

Mediation

This isn’t appropriate for all situations but may work if both parties are willing to cooperate. The parties can agree the scope of the issues to be resolved and any discussions would be confidential.

With mediation, you could potentially land on a more suitable commercial solution compared to the outcomes available at an employment tribunal. However, mediation does not impose a sanction on any party involved, so may not be suitable for all situations.

 

How Citation can help

If you’re unsure if early conciliation is right for you, our HR & Employment Law team can help. We’ll guide you through the ACAS early conciliation process, as well as the alternative options, to find the best solution for your business.

With over 50,000 happy clients, you know you’ll get the support you need from the Citation team. Get in touch today to learn more – either fill out the form on this page or call 0345 844 1111 to speak to our team.