When a claim is brought against you, the employee is usually required to comply with Acas Early Conciliation, but is this always necessary?
In this article we consider the recent Employment Appeal Tribunal case of Abel Estate Agent Ltd and ors v Reynolds [2025] EAT 6 and its finding that the employment tribunal had erred in its decision to reject a claim which had been submitted without complying with Early Conciliation.
What is Acas Early Conciliation?
Early Conciliation (EC) is the process before a claim is issued where Acas speak to both parties to establish whether settlement can be reached, avoiding the need to go to an employment tribunal.
With most employment claims, there is a time limit of three months, minus one day, in which to issue a claim at the tribunal. If an individual is considering taking their employer or previous employer to tribunal, they usually need to contact Acas within that time limit. Acas will act as the mediator between both parties to discuss potential settlement options. If no settlement can be reached, Acas will issue an EC Certificate to the employee (the Claimant) with a reference number that can then be referred to when the Claimant submits their claim via an ET1 form.
What did the Employment Tribunal consider?
In the case of Abel Estate Agent Ltd and ors v Reynolds case of Abel Estate Agent Ltd and ors v Reynolds, the claimant presented claims for automatic unfair dismissal, with an accompanying claim for interim relief, and whistleblowing detriment. However, the claimant had failed to comply with the requirement to contact Acas, in accordance with the EC scheme, before issuing her claim. Whilst this did not impact the unfair dismissal claim, which had been accompanied by a claim for interim relief, it did affect the claim for whistleblowing detriment.
The employment tribunal did not initially recognise the failure to comply with EC. The respondents failed to respond to the claim and a default judgment was entered against them. Following this, the respondents submitted applications for an extension of time and for the claimant’s claim to be rejected on the grounds of jurisdiction for a failure to comply with EC. The tribunal subsequently made the decision to reject the claimant’s whistleblowing detriment claim, in part due to the failure to comply with the EC procedure. However, the tribunal did allow the claimant to amend her claim and submit an identical whistleblowing detriment claim. The respondents appealed against the decision to allow the claimant to amend her claim.
What did the Employment Appeal Tribunal (EAT) find?
The EAT dismissed the respondents’ appeal. The EAT referred to the case of Clark v Sainsbury’s Supermarket Ltd 2023 which held that where no initial rejection of the claim occurs at the preliminary stage (in this instance, on receipt of the claim when the tribunal did not recognise the failure to comply with EC), it is not open to the respondent to submit at later stages that the claim should have been rejected.
The EAT held that the claimant’s breach in submitting her claim, following a failure to comply with EC, did not mean that the employment tribunal did not have jurisdiction to hear the claim. The EAT found that a claimant’s obligation is to provide information to Acas and consider whether to take advantage of Acas conciliation. A failure to do so, would not affect a tribunal’s ability to determine a claim.
In this case, by the time the breach of compliance was noted, proceedings had already commenced, which removed the possibility of EC being successful. The purpose of EC could not be served as its aim is to prevent litigation.
The EAT ordered the tribunal to proceed in considering both the unfair dismissal and whistleblowing detriment claims.
What should you do when an employee issues a claim against you?
If an employee or previous employee commences Acas EC processes, you should respond promptly and engage with EC as much as possible. If EC fails, you should ensure that you are prepared for the receipt of a claim from the employee. Employers are at greater risk of receiving a default judgment if they fail to respond to a claim within the 28-day time limit. Employers often struggle to comply with the time limit when a claim has been sent to a different address than expected, staff should therefore be clear on who will take responsibility for and action any claims submitted.
We recommend that you speak to us if you receive correspondence from Acas in relation to EC or are informed that a claim has been issued against you. We will then ensure that the claim has been properly submitted and ensure that you are able to respond appropriately within the required timeframe.