Early conciliation: negotiating through ACAS

Schools and Academies are facing an increasing number of Early Conciliation claims from employees, since the introduction of the scheme last April. Early Conciliation is a mandatory system of pre-claim conciliation which must be completed before an Employment Tribunal claim can be lodged. Participation in Early Conciliation will extend the limitation date to bring a claim in the Tribunal in most cases, although there is potential here for uncertainty around the issue date for subsequent claims if the conciliation process fails, because of the complex rules on time limits.

There is no obligation on either side to conciliate, or impact on any subsequent claims if they decline to do so, but it can provide a quick and cost-effective way of resolving disputes. Generally, it seems to have been positively received but a number of our clients have expressed surprise that ACAS do not take a more active role in the negotiation process and that they are still required to manage this process themselves. Indeed, ACAS cannot advise on the merits of any claim and simply act as a neutral third-party to facilitate settlement. However, they can be a helpful source of information about the nature of potential claims, so it may be worth using ACAS to gain some understanding of the threatened claims even if you choose not to conciliate.  The following are some key tips to bear in mind when conducting a conciliation process.

  • It can be useful to request a schedule of loss at an early stage of the conciliation process, so that you know the level of financial claim against you, and this can be used as a helpful starting point for negotiations.
  • Any discussions which take place through ACAS are likely to be subject to the without prejudice rule since litigation would usually have either been commenced or be contemplated. It is not necessary to mark these communications as 'without prejudice', but it cannot hurt to do so.
  • COT3 agreements are the form of settlement agreement issued through ACAS. COT3 agreements do not need to comply with the same statutory requirements as settlement agreements and so they can provide additional flexibility.  An oral agreement reached following ACAS conciliation is binding, provided it satisfies the legal formalities of a contract.
  • There are certain claims which cannot be settled under a settlement agreement, but which can be settled with ACAS involvement, such as a failure to pay compensation due pursuant to a protective award under the TUPE regulations.
  • The right to statutory maternity and paternity pay cannot be settled at all, because there is a restriction on contracting out of these payments.
  • ACAS will only conciliate on the facts presented to them, so there could be other potential claims that need to be wrapped up at the same time. It would be wise to take legal advice to ensure that the wording of any COT3 adequately covers you and that you do not leave yourself open to subsequent claims.
  • There is no set requirement for the format of the COT3 agreement. You will simply need to send ACAS the agreed wording and they will issue the formal COT3. 

Have you experienced other issues in settling employment claims through ACAS? Please feel free to contact our Employment team if you need assistance when negotiating with ACAS.