We are increasingly seeing delays in the Advisory, Conciliation and Arbitration Service (‘ACAS’) Early Conciliation process, and this could have a domino effect on tribunal claims in the months and years to come.
Understanding ACAS early conciliation
Why early conciliation is mandatory
ACAS Early Conciliation is an essential part of the UK’s employment dispute resolution system. It exists to facilitate settlement early without the need for formal legal proceedings. However, increasing delays in the ACAS processing and Tribunal backlogs are putting pressure on the system. With potential changes under the upcoming Employment Rights Bill anticipated this could further affect timelines and add strain to an already over worked system. For employees, employers, HR professionals, and legal advisers, understanding early conciliation, the consequences of delays, and emerging legislative reforms is essential to protect rights, manage risk, and plan effectively.
Step-by-step process of early conciliation
Before you can submit an employment tribunal claim, you must contact ACAS to start early conciliation, which has been a legal requirement since 2014. An ACAS conciliator acts as an intermediary between parties to explore settlement opportunities confidentially and without prejudice. If no settlement is reached, or a party does not wish to engage, ACAS issues a certificate with a unique reference number required to submit a Tribunal claim.
This is a mandatory step, designed to encourage resolution without a formal claim. This process is designed to save time, cost and stress for both parties which also reduces the pressure on the tribunal system.
Time limits and the effect on tribunal claims
Here’s how it works:
- You notify ACAS of your intention to bring a claim.
- ACAS assigns a conciliator who contacts both parties to discuss the dispute.
- If you reach an agreement, the matter ends there.
- If not, ACAS issues an early conciliation certificate, allowing you to lodge your claim with the Tribunal.
Without an early conciliation certificate, a Tribunal will reject the claim outright unless a narrow exemption applies. Claimants who submit without a valid certificate must initiate conciliation and reissue the claim afterwards but if their limitation deadline has passed, they will lose their right to bring the claim. Most claims must be issued within three months less one day from the date of the act (e.g. dismissal, discrimination). Claimants must be aware that the three-month period starts even if an appeal against the dismissal is lodged with the employer. Internal appeal processes can take significant time, and claimants should check internal policies regarding appeal timelines. If an appeal is not concluded as laid out in the policy, they should request an immediate update on when the appeal will be concluded. If the appeal is taking time you may wish to consider contacting ACAS to ensure that you have time to conclude the ACAS early conciliation process and proceed to submitting a claim if required.
Early conciliation pauses the three-month deadline during the conciliation period. After conciliation ends, claimants will then have either the remainder of their original time limit, or at least one month from the date of the certificate, depending on when conciliation commenced.
The impact of ACAS delays
For claimants, early conciliation offers the chance to settle quickly and confidentially without the delays and exposure of Tribunal litigation. For employers, it is a chance to resolve disputes before incurring legal costs and business disruption.
However, we are now seeing, longer waiting times for ACAS to initiate contact with the other parties. There being minimal or no meaningful conciliation and certificates being issued without proper dialogue undermining the whole purpose of early conciliation.
These delays are creating situations where more claims proceed to Tribunal unnecessarily, increasing the burden on an already stretched system. Hearing dates are pushed further back, leaving parties in limbo for months or even years. Potential settlements are missed, leading to increased legal costs and workplace disruption for employers.
Upcoming legislative changes
Reforms under the Employment Rights Bill
The upcoming Employment Rights Bill, expected to progress quickly before the end of the parliamentary sitting, proposes reforms to employment dispute processes, including potential increases in statutory protections, an extension of time limits for bringing certain claims from three to six months and increased complexity in case management.
While many reforms aim to enhance employee rights and clarify procedures, the proposed extension of time limits may lead to an increase in the volume of claims brought to the Employment Tribunal. Combined with the broader reforms, these changes may place additional burdens on the Tribunal system, potentially worsening existing delays unless accompanied by significant investment.
Practical advice for employees
Starting early conciliation on time
- Start Early Conciliation promptly, don’t leave it to the last minute before your limitation deadline.
- If your employer refuses to engage, at least your certificate will be issued so you can proceed.
Following up with ACAS
- Be proactive, if you do not hear from ACAS within a few days, call them to follow up.
Preparing Tribunal documentation
- Know your claim value and prospects, being clear on what your claim is worth, and its legal strengths will place you in a better negotiating position.
- Prepare your ET1 claim form in parallel, given current delays, do not rely on ACAS settling the matter in time. Prepare your tribunal documents to avoid deadline pressure.
- Seek legal advice early, even a one-hour consultation can clarify your options and help avoid fatal procedural mistakes.
Practical advice for employers
Engaging with ACAS promptly
- Don’t ignore ACAS calls or emails, the sooner you engage, the sooner the matter can potentially be resolved cost effectively.
Evaluating risks and settlement options
- Assess risks pragmatically, even if you believe you have a strong defence, litigation always carries cost, management time and reputational risk.
- Consider settlement options, an early and reasonable settlement may be preferable to a drawn-out Tribunal process.
Improving internal processes
- Keep written records of discussions, if conciliation fails, these records can inform your strategy at tribunal stage.
- Review internal processes, if a claim arises from systemic issues, address them proactively to reduce future risk exposure.
Why early conciliation still matters
The increase in delays at ACAS Early Conciliation is not just an administrative inconvenience, it has real world consequences. At a time when employment tribunals are already under pressure, early conciliation remains a vital process. Make sure you use it wisely.
For expert advice on early conciliation, Tribunal claims, and upcoming employment law reforms, please contact our Employment Law team.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
