This process is entirely free; however, should either party want legal assistance, this will be charged accordingly by the party's chosen employment lawyers.
Early conciliation is a mechanism designed to help employees voice their concerns outside of the internal employment mechanisms and try to resolve these concerns while still avoiding the need to go through the lengthy and stressful ordeal of submitting a claim employment tribunal.
It is important to note that all discussions through the ACAS early conciliation process are considered to be off the record "without prejudice" conversations. Therefore, they cannot be disclosed or relied upon during the tribunal proceedings if a settlement is not reached.
Is ACAS early conciliation a requirement?
Whilst it is mandatory for an employee to inform ACAS of their intention to bring an employment tribunal claim, the employee is not obliged to settle their claims via the early conciliation process. However, it is vitally important that an employee follows this first step before submitting a tribunal claim.
How does ACAS early conciliation work?
When an employee informs ACAS that they wish to claim in an employment tribunal, they are known as the "claimant". The employer is known as the "respondent". During the early conciliation process, the parties will often be referred to under these titles.
Once the employee has contacted ACAS, the ACAS officer will take preliminary details of the employee's potential claim and then appoint an ACAS conciliator to the matter.
Once the conciliator has the necessary details, they will ask whether the employee wishes for them to contact the employer for opening settlement discussions. If permission is granted, the conciliator will reach out to the employer and explain the situation to facilitate settlement discussions.
An employer may choose not to engage in the process. If this is the case, the early conciliation period will be brought to an end.
ACAS early conciliation conciliator's role
If both parties enter into the early conciliation process, the conciliator acts as a "go-between" to facilitate discussions between the employee and employer. The conciliator will liaise with both parties to decipher their position and propose any settlement offers made by either side.
The conciliator is completely impartial; they do not represent either party and cannot provide legal advice to either party.
Fundamentally, the conciliator is there to ease discussions between the parties, as relationships are likely to have broken down by this stage. The conciliator can help explain the process, talk through the issues, and discuss possible resolution methods that avoid recourse to the Employment Tribunal. The conciliator will not be able to force an agreement on either party or advise either party on their case's strength. The conciliator is also not allowed to assist either side in their preparations for Employment Tribunal.
Representation During ACAS early conciliation
Both parties are entitled to appoint representatives to act on their behalf during the ACAS early conciliation process. If a representative is appointed, the conciliator will speak directly with them rather than the employee/employer.
Therefore, it is essential for the representative to clearly understand the party's position prior to commencing early conciliation and to remain in constant communication with the party that they represent to obtain their instructions as the process progresses.
The representative should regularly update the employee/employer as to how discussions are faring. A representative can be any individual of the party's choosing, e.g. a friend, relative, work colleague, Trade union official or a Solicitor. If at any point during ACAS early conciliation a party wishes to add or remove a representative this can be arranged.
Possible outcomes of ACAS early conciliation
Following a recent change in this area, the ACAS early conciliation process usually continues for a period of 6 weeks (previously one month).
Of course, the early conciliation process will not continue unnecessarily. There is no point in the parties merely rehearsing their potential claim or potential defence to the claim if it is not believed that a settlement is possible at this time. Therefore, if during the process, it becomes clear that the two parties are too far apart in their expectations to make settlement a possibility, ACAS early conciliation can end sooner than this date.
If an agreement is reached between the parties during ACAS early conciliation, this is recorded on a form known as a "COT3". The COT3 details the terms of the settlement between the parties. It is a legally binding document once signed by both parties, and so it is vital both the employer and employee carefully read this document and are happy with its contents prior to signing it.
Once the COT3 has been finalised, the matter will be closed. The employee will no longer be able to bring a claim in relation to this matter in an Employment Tribunal.
Alternatively, if an agreement cannot be reached between the parties during ACAS early conciliation, ACAS will release a document to both parties, which is known as an early conciliation certificate, to confirm this conciliation has taken place, but no agreement has been reached. This document is needed to enable the employee to issue a claim in the employment tribunal.