Acas’ role in employment Tribunal disputes
Who are ACAS and what is ACAS early conciliation?
ACAS is an impartial form of mediation and ACAS early conciliation (as explained on ACAS’ website):
ACAS early conciliation is a window of up to six weeks for employees and employers to seek to agree a financial settlement prior to a prospective Claimant lodging their claims at an Employment Tribunal.
Is ACAS early conciliation Employee led or employer led?
Typically, it is the employee who commences ACAS early conciliation. An employee seeking to commence ACAS early conciliation would submit an online form which captures information about the parties who would be involved in a Tribunal claim.
You can as an employer start ACAS early conciliation in circumstances where the parties are in dispute but usually at the stage before parties have agreed terms. There is no online form an employer can fill in rather they need to call ACAS directly on 0300 123 1122 to commence the process.
Do we have to go through ACAS early conciliation?
If either party does not want to engage in ACAS early conciliation, then the respective party just needs to advise ACAS of this. The Claimant will need to obtain an ACAS early conciliation certificate in order to progress their claim to the Tribunal, however. A prospective Claimant can do this without having to attempt conciliation with their employer/former employer.
Are there any time limits I need to be aware of?
Time limits are very strict in the employment Tribunal. The general rule is that a Claimant has three months less one day to bring their respective claims. If for example the claim was unfair dismissal, the limitation date would be three months less one day stemming from the dismissal date. If the Claimant was bringing a discrimination claim the three months less one day rule would run from the last act complained of.
Does ACAS early conciliation pause the clock on the three months less one day rule?
This is where matters can get quite tricky. Section 207B of the Employment Rights Act 1996 (ERA 1996) is the relevant statutory provision which covers the impact of ACAS early conciliation on the three months less one day rule.
Under subsection 207B(4), If the limitation deadline falls within the period that ACAS is dealing with the claim (plus one month), the Claimant gets an automatic extension of one month from the date at which the ACAS early conciliation certificate was issued.
Section 207B(3) states that:
“in working out when a time limit set by a relevant provision expires, the period beginning with the day after Day A and ending with Day B is not to be counted.”
Section 207(B)(4) says that:
“if a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.”
*Day A means the day on which ACAS Early Conciliation commences
**Day B means the day on which the ACAS Early conciliation certificate is issued.
A fairly recent amendment to the relevant legislation is that ACAS early conciliation is now automatically up to six weeks in duration. Previously it was four weeks, and the parties could mutually agree to extend for a further two weeks. The misconception can be that because ACAS pauses the clock on limitation, it will do so for the full six weeks but in reality, the maximum the clock will be paused for is one month against calculating limitation dates. This will only be of relevance in cases where a Claimant has lodged ACAS early conciliation very near to the end of the initial three months less one day limitation period and then not lodged their claim within the small window after one month of the certificate being issued. It is a point worth noting because if a Claimant lodges their claims out of time they will have to persuade a judge that it is just and equitable to extend such time limits.
Can ACAS advise on time limits or give legal advice?
In short, no is the answer to this. The ACAS website is very clear that parties should seek legal advice on time limits.
Can ACAS assist beyond the initial period of conciliation?
This is a crucial part of the role that ACAS plays in the Tribunal process that is often overlooked. The parties can speak to ACAS at any time during proceedings even during a substantive hearing. Judicial mediation is commonly where ACAS can assist as parties will have draft terms in place prior to the judicial mediation. Once the figures are agreed it is usually a straightforward process for ACAS to agree a legally binding agreement and circulate signed COT3 terms.
What is the cost to go through ACAS early conciliation?
The cost is free which is the attraction for individuals. Equally for employer led conciliations, having ACAS preparing COT3 terms rather than the employer meeting the expense of having a settlement agreement drafted and then contributing to the employee’s legal fees in addition, is appealing in this respect. As set out above ACAS cannot give legal advice. So if the employer is seeking additional terms inserting into the COT3 terms beyond a straight forward withdrawal of claims from the Tribunal in return for monetary compensation specialist advice should be sought.
- Please note – this guidance is not intended to be taken as legal advice. For individual situations you will need to take specific legal advice.
- The information in this guide is correct as of February 2022.
- All information provided should be read alongside the relevant Government Guidance at https://www.gov.uk.
Director, Employment Solicitor and Mediator