How long is the ACAS early conciliation period?

In most cases, an individual who wishes to issue a claim in the Employment Tribunal (ET) must first follow the ACAS early conciliation procedure. ACAS is an independent, impartial organisation mandated to liaise with employers and employees about possible settlement of employment disputes.

The early conciliation process aims to give the employer and employee an opportunity to resolve the dispute without the need for the employee to commence ET proceedings. According to the latest ACAS annual report, in 2019 to 2020 ACAS received nearly 140,000 early conciliation notifications (approximately 2,700 notifications a week). 77% of the notifications handled by ACAS did not lead to an ET claim (because a formal or informal agreement was made, or the claimant decided not to proceed).

The early conciliation process

The early conciliation (EC) process involves the following:

The individual contacts ACAS by either submitting an EC form online or by post, or by telephoning ACAS.
If the individual wishes to conciliate and consents to ACAS contacting the employer, ACAS will make reasonable attempts to contact the employer to see if they are willing to participate in EC.
Where both parties have agreed to conciliate, ACAS will have a set period of time (the EC period) to promote a settlement between them.

Until 1 December 2020, the EC period was one calendar month. This period could be extended by 14 days where the conciliator considered that there was a reasonable prospect of achieving a settlement by the end of that period.

However, new regulations came into force on 1 December 2020 changing the EC period. This has now been extended from one calendar month to six weeks. There is no longer any possibility of extending the EC period. This new timescale applies where notification has been received by ACAS on or after 1 December 2020.

If at any point during the EC period, the conciliator concludes that settlement is not possible; or if the EC period ends without a settlement being reached, ACAS will issue an EC certificate.

Comment

The effect of the EC certificate is that the individual is then able to issue their claim in the ET if they wish to do so. The time limits for individuals to issue their claim in the ET are extended to take account of the EC period.

Employers can also contact ACAS if they consider that a claim may be issued against them, but the individual has not yet triggered EC. However, where it is the employer that contacts ACAS, this does not in itself extend the limitation period for any claim that the individual may wish to bring in the ET.

The rules on extension of time limits for issuing claims in the ET are strict, and the parties should check the provisions carefully or consider seeking legal advice on this point.

Although there is a fixed period for EC, ACAS may still continue to help parties to achieve a settlement after the end of that period, including after an ET Claim has been issued.

Finally, when discussing potential settlement via ACAS, the parties should consider the terms of that settlement. If a settlement is reached, this is recorded in a COT3 agreement. The terms usually include payment of a sum within a specified period, but can also include agreement on non-financial matters, such as confidentiality clauses.

We represent employers in the EC process and in the Employment Tribunal. Contact us to find out more.

09 December 2020

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