Employment disputes in England and Wales often progress through several stages before reaching a formal hearing in an employment tribunal. Although employment tribunals are less formal than civil courts, there are still important procedural requirements that parties must follow before bringing a claim. These steps are sometimes described as pre-action requirements or pre-claim procedures.

Understanding and complying with these steps is essential for both employees and employers. Failure to follow them can affect how a tribunal views a case and may influence the level of compensation awarded. This guide explains the legal framework governing employment tribunal pre-action procedures, the role of early conciliation, and the practical steps parties should take before issuing a claim.

What Are Employment Tribunal Pre-Action Requirements?

In civil court proceedings, formal pre-action protocols require parties to exchange information and attempt settlement before litigation. Employment tribunals operate slightly differently, but they still require parties to follow certain pre-claim procedures designed to encourage early dispute resolution.

The most significant requirement is Acas Early Conciliation, which is mandatory in most employment tribunal claims. In addition, tribunals expect parties to attempt internal dispute resolution, such as grievance or disciplinary procedures, before escalating a dispute to litigation.

These requirements aim to:

• Encourage early settlement of employment disputes
• Reduce unnecessary tribunal claims
• Promote fair and efficient resolution of workplace issues

The Legal Basis for Pre-Action Procedures

Several legal frameworks shape the pre-action process in employment disputes.

Key sources include:

• The Employment Tribunals Act 1996
• The Employment Tribunals Rules of Procedure
• The Acas Early Conciliation scheme
• The Acas Code of Practice on Disciplinary and Grievance Procedures

Together, these frameworks require parties to consider alternative methods of resolving disputes before formal tribunal proceedings begin.

Step 1: Attempting to Resolve the Dispute Internally

Before initiating formal legal proceedings, employees are generally expected to raise workplace concerns with their employer.

Common internal processes include:

• Informal discussions with managers or HR departments
• Formal grievance procedures
• Appeals against disciplinary decisions

Tribunal judges often consider whether a claimant attempted to resolve the dispute internally before issuing a claim. Guidance from Acas states that individuals should usually attempt to raise concerns informally or through a formal grievance before notifying Acas of a tribunal claim.

Failure to follow internal procedures does not automatically prevent a claim, but it may affect compensation awarded by the tribunal.

Step 2: Acas Early Conciliation

Mandatory Notification Requirement

In most employment disputes, individuals must notify the Advisory, Conciliation and Arbitration Service (Acas) before submitting an employment tribunal claim.

This process is known as Early Conciliation.

A claim cannot normally proceed without completing this step. Once Acas is notified, the organisation offers a free conciliation service aimed at resolving the dispute without litigation.

Purpose of Early Conciliation

Early conciliation allows an independent conciliator to speak separately with both parties to explore the possibility of settlement.

Conciliators do not:

• Take sides
• Provide legal advice
• Represent either party

Instead, they help parties discuss potential resolutions, including financial settlements or agreed workplace outcomes.

How the Early Conciliation Process Works

Notifying Acas

To start the process, the prospective claimant submits an early conciliation notification form to Acas. This provides basic information about the dispute and the parties involved.

Acas will then contact the claimant and ask whether they wish to attempt conciliation.

Contacting the Employer

If the claimant agrees to conciliation, Acas will contact the employer (known as the respondent) to determine whether they are willing to participate.

Participation is voluntary, although notification itself is mandatory.

Duration of the Conciliation Period

The early conciliation period now lasts up to 12 weeks for most claims notified after December 2025, giving parties more time to negotiate settlement.

During this time, the statutory time limit for bringing a tribunal claim is effectively paused.

Settlement Agreements Through Early Conciliation

If the parties reach an agreement during early conciliation, the conciliator records the settlement in a legally binding document known as a COT3 agreement.

Once a COT3 agreement is concluded:

• The dispute is considered legally settled
• The claimant cannot bring the same tribunal claim in the future
• Both parties must comply with the agreed terms

COT3 agreements commonly involve financial compensation, references, or confidentiality provisions.

When Early Conciliation Does Not Resolve the Dispute

If the parties cannot reach a settlement, Acas will issue an Early Conciliation Certificate containing a unique reference number.

This certificate is essential for filing an employment tribunal claim. The claimant must include the certificate number on the ET1 claim form when starting proceedings.

Without this certificate, most tribunal claims cannot proceed.

Time Limits for Employment Tribunal Claims

Strict time limits apply to employment tribunal claims.

In most cases, a claim must be submitted within three months less one day from the date of the relevant incident, such as dismissal or discrimination.

The early conciliation process temporarily pauses the limitation period while discussions take place. Once the certificate is issued, claimants generally have at least one month to submit their tribunal claim.

Calculating these time limits can be complex, particularly where conciliation overlaps with the original deadline.

Responding to Claims: Employer Obligations

Once a claim has been filed, the employer must submit a response using the ET3 form, usually within 28 days of receiving the tribunal claim.

Employers should:

• Review the claim carefully
• Gather relevant evidence and documentation
• Consider obtaining legal advice from employment solicitors

Failure to respond within the deadline may result in a default judgment against the employer.

Legal Risks of Ignoring Pre-Action Procedures

Failure to comply with pre-action expectations can have serious consequences.

Impact on Tribunal Decisions

Employment tribunals may consider whether parties attempted to resolve disputes before litigation.

Ignoring internal procedures or refusing reasonable settlement discussions may affect how the tribunal assesses credibility and conduct.

Compensation Adjustments

Where an employer or employee fails to follow the Acas Code of Practice on disciplinary or grievance procedures, tribunals may adjust compensation by up to 25%.

This financial consequence can significantly affect the outcome of employment claims.

Increased Litigation Costs

Although employment tribunals rarely award legal costs, unreasonable behaviour during the pre-action stage can lead to cost orders in some circumstances.

Practical Steps for Complying With Pre-Action Requirements

To ensure compliance with employment tribunal procedures, parties should take a structured approach.

For Employees

Employees considering a tribunal claim should:

1. Attempt informal resolution where possible.
2. Raise a formal grievance if the issue cannot be resolved informally.
3. Gather relevant documents and evidence.
4. Notify Acas to begin early conciliation.
5. Monitor strict time limits for tribunal claims.

For Employers

Employers should:

1. Maintain clear grievance and disciplinary procedures.
2. Investigate complaints promptly and fairly.
3. Engage constructively with early conciliation discussions.
4. Keep records of communications and internal decisions.
5. Seek professional legal advice when appropriate.

Taking these steps can reduce the risk of litigation and demonstrate compliance with legal expectations.

Common Questions About Employment Tribunal Pre-Action Requirements

Are pre-action protocols mandatory for employment tribunal claims?

Unlike civil court proceedings, employment tribunals do not have formal pre-action protocols. However, early conciliation with Acas is mandatory in most cases.

Can a claim proceed without early conciliation?

Only in limited circumstances. Most claims require an early conciliation certificate before they can be filed.

Do employers have to participate in conciliation?

Employers are not required to participate in negotiations, but they must respond to tribunal proceedings if a claim is filed.

Can conciliation continue after a tribunal claim is issued?

Yes. Acas conciliation services can continue during tribunal proceedings until a judgment is issued.

Summary

Employment tribunal disputes in England and Wales require parties to follow important pre-action procedures designed to encourage early resolution of workplace conflicts. The most significant requirement is notifying Acas and participating in the Early Conciliation process, which allows disputes to be settled without formal litigation.

Before reaching this stage, employees should normally attempt to resolve issues through internal workplace procedures such as grievance processes. Employers should investigate complaints fairly and engage constructively with conciliation discussions.

Strict time limits apply to tribunal claims, and failure to comply with procedural requirements may affect compensation awards or case outcomes. By understanding and following the correct steps, both employers and employees can reduce the risk of unnecessary litigation and resolve disputes more efficiently.