Employment tribunals and settlement – what employees need to know in 2021

This article provides guidance for employees who are considering bringing a claim against their employer at an employment tribunal, including settlement options. 

Employment tribunals – the current situation

Even before COVID-19, the wait times for employment tribunals were already lengthy. The pandemic has only served to exacerbate these issues.

Official data published by the government showed there were 44,000 outstanding employment tribunals in the period between October – December 2020 and it is likely this number is still increasing.

Employees could be put at a significant disadvantage because of the costs involved in bringing a claim and the wait for employees before they get a resolution. If you are currently in this position, you may want to consider the options for an early resolution to your claim.

What are the options?

Acas early conciliation

Before issuing a claim with the employment tribunal, you as an employee must first inform the conciliation service Acas that you intend to bring a claim. Acas will offer the option of early conciliation to facilitate discussions between you and your employer and see if a settlement can be reached. Acas do not represent either party but act as a neutral intermediary.

In 2019 – 2020 Acas recorded 17% of early conciliation notifications resulted in a conciliated settlement between the parties.

Before 1 December 2020 the standard Acas early conciliation period was four weeks. However, for notifications received on or after 1 December 2020 this has now been extended to six weeks with no further opportunity to extend. This change allows parties more time to settle at an early stage.

We would recommend that employees looking to settle take the opportunity of the extension to consider whether an agreement can be reached before a tribunal claim needs to be brought.

By settling early, the employee-employer relationship has a higher chance of remaining intact if reengagement is agreed. It also minimises the distress caused by a lengthy tribunal process.

Settlement during proceedings

If you do not settle within the Acas early conciliation period, you can still settle issues at any stage of the proceedings after the claim has been brought up to and including the final hearing.

You may decide at a later point in the tribunal process, such as when you have seen disclosure papers from the employer, or witness statements, that you would like to consider settlement as you no longer consider your case to be as strong as it initially appeared.

Similarly, your employer may try and contact you at these stages regarding settlement if they do not believe their case to be as strong as they initially thought.

If you reach an agreed settlement once a claim has been brought, you can notify Acas of this and agree the terms of a mutual settlement. This written agreement is known as a COT3 and we would recommend that you seek legal advice on the terms of this agreement. Some employers will agree to cover the cost for this.

Looking ahead

With the ongoing pandemic it is unlikely employment tribunals will be able to clear the backlog for many months to come. As a result, settlement at this time may be more appealing to both parties.

Further information

For more information on how we can support you on the issues covered in this article, please get in touch with our Employment law team today.

This content is correct at time of publication