When workplace disputes arise and the threat of an Employment Tribunal (ET) looms, many employers and employees look to resolve issues early through the Advisory, Conciliation and Arbitration Service (ACAS). One of ACAS’s key roles is facilitating Early Conciliation – a mandatory step for most employees before submitting a tribunal claim. However, what many employers don’t realise is that there are two distinct pathways into ACAS conciliation: one initiated by the employee (mandatory Early Conciliation) and one voluntarily started by the employer. Understanding the difference is critical to managing risk and timelines effectively.
Employee-Initiated Early Conciliation: The Mandatory Route
When an employee (or worker) has a potential claim, they must notify ACAS before lodging an Employment Tribunal claim. This is known as Early Conciliation and is a statutory requirement.
Process Overview:
- The employee submits an Early Conciliation notification to ACAS.
- An ACAS conciliator contacts both parties to explore resolution.
- The conciliation period lasts up to a maximum six weeks.
- If settlement is reached, a COT3 agreement is drawn up and agreed by both parties.
- If not, ACAS issues an Early Conciliation Certificate.
- The ET claim clock is paused during conciliation and resumes once the certificate is issued.
Legal Implications:
- The issuance of an Early Conciliation Certificate is mandatory before the employee can file a tribunal claim.
- The limitation period for the claim (usually 3 months minus 1 day from the act complained of) is paused (“stopped”) during conciliation.
Employer-Led Conciliation: A Voluntary Approach
Less commonly, employers may approach ACAS proactively, before or during a potential dispute, to attempt to resolve the matter; even before an employee has submitted an Early Conciliation notification.
Process Overview:
- The employer contacts ACAS requesting conciliation (with the agreement of the employee).
- In most circumstances the employer will have already have had a without Prejudice or Protected Conversation with the employee and have an agreement in principle in place, i.e. the overall terms of settlement.
- ACAS will only proceed if the employee agrees to engage.
- Discussions proceed similarly to Early Conciliation.
- If agreement is reached, a COT3 is drafted and signed.
- No Early Conciliation Certificate is issued unless the employee themselves initiates the formal EC process.
Legal Implications:
- Importantly, this does not satisfy the statutory requirement for Early Conciliation on behalf of the employee.
- If the employee later decides to bring a claim, they must still submit their own EC notification (within time), and only then is the tribunal limitation clock paused.
- The employer-led route does not protect against time running out for the employee to bring a tribunal claim.
Why This Difference Matters for Employers
Employers should be cautious not to confuse a voluntary ACAS discussion they initiate with the mandatory Early Conciliation process. Doing so can create false security about timing and the risk of litigation.
For example:
Scenario A – Employee-Initiated Early Conciliation:
An employee alleges constructive dismissal and contacts ACAS. Conciliation lasts 4 weeks and fails. ACAS issues a certificate, and the employee has an additional period (depending on how long conciliation lasted) to submit an ET1. You, the employer, are on clear notice that a claim may follow imminently, and time limits have been affected.
Scenario B – Employer-Led Conciliation:
You suspect a grievance could escalate and contact ACAS to try to settle. The employee engages, but no agreement is reached. You believe the risk of a claim has passed. However, two months later, the employee initiates their own Early Conciliation process and pauses the clock on the ET claim. A claim arrives much later than expected. Because your initial contact did not affect time limits, you could be blindsided.
When Should Employers Use Employer-Led ACAS Conciliation?
There are valid strategic reasons to initiate contact with ACAS as an employer, particularly where early, confidential resolution could prevent a dispute escalating. Examples include:
- After a difficult dismissal or redundancy where you anticipate potential legal action.
- Following a grievance outcome that you fear may prompt tribunal action.
- During ongoing employment, when the relationship may have broken down. This can be the case even when an ET is not expected but an agreed parting of ways needs to be actioned
Initiating contact demonstrates a willingness to resolve disputes, and may lead to a quicker, less costly resolution. But it should never replace monitoring tribunal limitation periods or expecting formal EC from the employee.
Final Thoughts
ACAS conciliation is a valuable tool in managing employment disputes, but only when its use and limitations are properly understood. Employers should view employer-led conciliation as a proactive risk management option like a Settlement Agreement, not as a substitute for proper legal awareness around Early Conciliation and tribunal deadlines.
Staying informed and seeking advice at the right time can prevent procedural missteps that might leave you exposed to avoidable claims. If you have an ongoing issue or believe that one may soon arise, get in touch so that we can advise you on what steps you can take to avoid a protracted dispute and claim.