ACAS Early Conciliation: an essential pre employment tribunal requirement?

What is ACAS Early Conciliation?

ACAS Early Conciliation is mandatory before claims can be presented at the employment tribunal, and as a result the time limits for lodging a claim at the employment tribunal are extended to enable parties to engage in conciliation. The purpose of the early conciliation period is to provide an opportunity for the parties to engage in discussions which may result in a resolution of the dispute. According to the figures provided by ACAS, they resolve approximately a third of disputes which are referred at early conciliation stage. There are exemptions from the Early Conciliation requirements in very limited circumstances, one of which is where a claim for unfair dismissal is presented to the employment tribunal and is accompanied by a claim for interim relief. An application for interim relief is available in very limited circumstances and, if successful would result in the employment tribunal ordering the employer to continue employing the employee (or continue paying their salary) from the date of termination until the final determination of their case. Applications for interim relief must be made before the end of the seventh day following the effective date of termination.

What were the issues that the Court of Appeal had to determine in this case?  

This case looked at if a failure to comply with the mandatory early conciliation requirement would mean that an employment tribunal did not have jurisdiction to the hear the claim. In addition, it also considered if an existing claim could be amended to effectively reinstate the claim which the tribunal may not have jurisdiction to hear.

The facts of the case

Ms Reynolds worked for an estate agent and property management business for three years until her dismissal. Ms  Reynolds bought a claim against her previous employer upon becoming redundant after raising a protected disclosure. It was alleged by Ms Reynolds, that as she was a whistleblower, the response by the employer to make her redundant entitled Miss Reynolds to bring a claim of unfair dismissal. Miss Reynolds did just that. She brought 2 courses of action in the employment tribunal where she claimed:

1. Her dismissal was automatically unfair because she had made protected disclosures under s103A Employment Rights Act 1996

2. Her dismissal constituted a detriment in response to her disclosures under s47B of the Employment Rights Act 1996

However, the disputed issue was not one of a substantive nature but  instead a procedural one. The issue that had to  be determined by the Court of Appeal was whether or not Miss Reynolds was entitled to have her detriment claim heard by the Employment Tribunal when no contact had been made with ACAS.

ACAS (the Advisory, Conciliation and Arbitration Service) is an independent public body designed to facilitate workplace dispute resolution,  ease the tribunal’s caseload and help improve workplace relationships. It does this through the requirement that most potential claimants must contact ACAS prior to commencing proceedings at the employment tribunal. ACAS will then provide the individual with an Early Conciliation Certificate (‘ECC’) and Early Conciliation Number (‘ECN’) in the following situations:

• Acas is unable to contact the prospective claimant.

• The prospective claimant tells Acas that they are unwilling to conciliate.

• Acas is unable to contact a prospective respondent.

• A prospective respondent tells Acas that they are unwilling to conciliate.

• The parties agree to conciliate but during the Early Conciliation period either party withdraws from the process.

• At any point during the Early Conciliation period the conciliator considers that there is no reasonable prospect of achieving a settlement of the dispute (or part of it).

• The Early Conciliation period expires without a settlement having been reached.

This Early Conciliation Number must be included in the claim form (except in limited circumstances) when submitting a claim to be decided by the Employment Tribunal.  An Employment Tribunal will reject a claim if the claim form submitted by the Claimant does not contain an Early Conciliation Number, confirmation that Early Conciliation does not apply to the claim or confirmation that an exemption applies.

Here, Miss Reynolds was bringing a claim for automatic unfair dismissal along with an application for interim relief in connection with this. Interim relief is an order made by an employment tribunal for the continuation of the employee’s employment pending final determination of the case. An application for interim relief must be made before the end of the seventh day following the effective date of termination.

Due to the stringent time limit of making an interim relief application, this claim is exempt from early conciliation. However, this exemption was only valid for Miss Reynolds’ claim of automatic unfair dismissal. The issue arose as to whether the claim for whistleblowing detriment under s47B ERA 1996 should have been rejected before the case was heard by an Employment Tribunal judge due to Miss Reynolds not complying with the Early Conciliation period for the detriment claim and thus lacking an ECN and ECC.

Employment Tribunal (ET)

The ET rejected the detriment claim as they believed they did not have jurisdiction to hear this due to Miss Reynold’s failure to comply with the EC procedure. However , they did allow Miss Reynolds to amend her  claim to add an identical detriment claim.

Employment Appeal Tribunal (EAT)

The Respondents appealed the decision of the ET arguing that rather than rejecting the detriment claim and then permitting an identical claim to be raised by way of amendment, the tribunal ought to have considered if the claim should have been  struck out.

The EAT held that Miss Reynolds’ failure to comply with the Early Conciliation requirements in respect of the detriment claim did not mean that  the tribunal was unable to hear the claim.

Court of Appeal (CA)

The case went to the Court of Appeal who disagreed with the EAT and held that the failure to comply with the Early Conciliation requirements  meant that that Tribunal had no jurisdiction to hear Miss Reynolds’ detriment claim.

The Court of Appeal did find however, that Miss Reynolds was allowed to amend her claim as these were existing related proceedings. This meant that she was able to pursue the identical detriment claim again the Respondents that she had sought to make originally.

Implications of the decision

This judgment provides clarity that an Employment Tribunal has no jurisdiction to consider a complaint where the requirement for providing the Early Conciliation information before the claim is brought is not complied with. The failure to contact ACAS in this situation was due to Miss Reynold’s applying for interim relief which meant that the claim had to be lodged at the Employment Tribunal urgently. The exemption from Early Conciliation only applies for those cases where interim relief is sought. This meant that her claim for whistleblowing detriment did not comply with the Early Conciliation procedure.

In this situation, Miss Reynold’s was able to amend the original existing claim that she had lodged in order to add the detriment claim that had previously been dismissed due to the jurisdiction issue. Whilst in this instance it enabled Miss Reynold’s to be able to pursue this claim, this will not automatically be the case, as an Employment Tribunal will consider any application to amend a claim in light of the duty imposed on tribunal’s to deal with cases fairly and justly.

Legal update - extension to the early conciliation period

It is worth highlighting at this stage that, as of the 1 December 2025, the Early Conciliation period will be extended from 6 weeks to 12 weeks to “ease the current pressure on ACAS for early conciliation”. The explanatory memorandum accompanying this legislation communicates the reason for the change being as follows:

“Demand for early conciliation has been rising over the past year alongside an increase in the complexity of cases, placing the early conciliation service under significant pressure. Opportunities for conciliation should be maximised as this is a vital service that supports workers, employees and employers to resolve disputes without the cost and time of going to an employment tribunal. Increasing the period for early conciliation from six weeks to twelve weeks will ease pressure on Acas, better enabling parties to take full advantage of the chance to settle disputes.

It would appear that the extension to the time limit for conciliation is to alleviate pressure on ACAS, and provide more opportunity improve the effectiveness of any period of early conciliation. This will however, mean that claimants will have a significant period of time in order to engage in early conciliation, which may result in additional claims being lodged at the employment tribunal particularly when the increase in the time limit for bringing all types of claims in the employment tribunals increases from three to six months, as is currently proposed in the Employment Rights Bill.