Early conciliation response is important because ACAS contact may be the first clear warning that an employee or former employee is considering an employment tribunal claim.
Employers should not ignore early conciliation or treat it as a minor administrative step. It is an opportunity to understand the dispute, assess risk and consider whether the matter can be resolved before a tribunal claim is issued.
ACAS early conciliation is designed to help the parties try to reach an agreement without going to an employment tribunal. If the claimant agrees, ACAS may contact the employer to explore whether settlement is possible.
What is early conciliation response?
Early conciliation is the process that usually happens before most employment tribunal claims. In most cases, an employee or former employee must notify ACAS before bringing a claim.
ACAS then offers early conciliation. An ACAS conciliator may speak to both sides separately to see whether the dispute can be resolved. The conciliator does not represent either party and does not decide who is right or wrong.
For employers, ACAS contact should be treated seriously. It may be possible to resolve the matter at this stage, but the employer should first understand the facts and potential legal risk.
Do not respond without checking the facts
When ACAS makes contact, the employer should avoid giving an immediate off-the-cuff response. A quick reaction may create problems if the employer has not checked what happened.
The first step should usually be to identify:
- who has raised the dispute
- what the complaint appears to be about
- whether the person is still employed
- what documents may be relevant
- which managers were involved
- whether there has been a grievance, dismissal or disciplinary process
- whether there are any urgent deadlines
The employer should keep a clear internal record of the ACAS contact and any discussions that follow.
Review the possible claim
An early conciliation response should be based on a realistic assessment of the possible claim. The employer should consider what legal complaint the employee may be preparing.
Possible claims may include unfair dismissal, discrimination, unlawful deduction from wages, breach of contract, redundancy issues, holiday pay, notice pay, whistleblowing or other employment rights.
Some disputes are straightforward. Others may look simple at first but become more serious once the facts are reviewed. For example, a complaint about dismissal may also include allegations of discrimination or failure to follow a fair process.
Gather documents early
Employers should begin gathering documents as soon as early conciliation starts. This does not mean preparing a full tribunal bundle immediately, but the employer should preserve and review key records.
Relevant documents may include:
- contracts of employment
- staff policies and handbooks
- disciplinary or grievance records
- dismissal letters
- absence records
- payroll information
- emails and messages
- meeting notes
- settlement correspondence
Managers should be told not to delete emails, messages or notes that may be relevant. Poor records can make the employer’s position harder to defend later.
Assess whether settlement makes sense before early conciliation response
Early conciliation gives employers a chance to consider settlement before a tribunal claim is issued. Settlement may avoid legal cost, management time, hearing preparation and uncertainty.
However, settlement should not be automatic. Employers should consider the strength of the potential claim, the likely compensation risk, legal costs, management time, commercial disruption and the message settlement may send.
Where the employer has a strong defence, it may decide not to settle or may make only a limited commercial offer. Where the evidence is weak or the potential claim is serious, early settlement may be sensible.
Be careful what is said to ACAS
Employers should be careful and consistent when speaking with ACAS. The conciliator’s role is to help the parties explore settlement, not to give legal advice to the employer.
The employer should avoid making admissions before taking advice. It should also avoid making offers without understanding the claim value, legal risk and any insurance position.
If a settlement proposal is made, the employer should make clear whether it is subject to agreement and proper documentation. Settlement terms should be recorded properly so there is no later dispute about what was agreed.
Check insurance cover
If the employer has legal expenses insurance, tribunal insurance or employment protection cover, the policy should be checked quickly.
Some policies require early notification when a dispute arises, not only after a tribunal claim has been issued. Delay may cause difficulties with cover.
Employers should check whether the policy covers early conciliation, who can advise them, whether insurer approval is needed for settlement and whether there are exclusions or excesses.
Prepare in case no agreement is reached
Early conciliation may not resolve the dispute. If no agreement is reached, ACAS will issue an early conciliation certificate and the employee may then decide whether to bring a tribunal claim.
Employers should use the early conciliation period to prepare. That means preserving documents, identifying witnesses, reviewing the facts and considering what the defence would be if a claim is issued.
If a tribunal claim is later received, the employer will need to respond within the required time limit. Early preparation can make that response much easier.
Practical early conciliation response checklist
When ACAS contacts an employer, the business should usually:
- record the date and details of the ACAS contact
- identify the employee and the likely complaint
- review the relevant facts and documents
- speak to managers involved in the issue
- preserve emails, notes and HR records
- assess the possible legal claims
- consider settlement and commercial risk
- check any insurance cover
- avoid making admissions without advice
- prepare for a possible tribunal claim
Getting the early conciliation response right
An early conciliation response can shape how the dispute develops. A rushed response may increase risk, but a calm and organised approach can help the employer make better decisions.
Early conciliation may create an opportunity to resolve a dispute before it becomes more expensive and time-consuming. It can also help the employer understand the claim and prepare if settlement is not possible.
Employers Law helps employers respond to ACAS early conciliation, assess employment tribunal risk and deal with workplace disputes. If ACAS has contacted your business, early advice can help you avoid unnecessary mistakes.
For practical help with ACAS involvement before a claim, visit our early conciliation representation page. For wider support, Employers Law also provides free employment law advice for employers across a full range of workplace issues.