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Settling or withdrawing your claim before an Employment Tribunal hearing
You can completely withdraw all or part of your Employment Tribunal claim at any time before or during your Employment Tribunal hearing. You can also settle the case before the hearing if you wish to do so. If you do settle or withdraw, you will need to let the Employment Tribunal know.
Ways to 'settle' a dispute with your employer
There are two main ways that you and your employer can come to an agreement which would avoid having to go to an Employment Tribunal. Both of these are legally binding – this means you would no longer be able to make an Employment Tribunal claim about the complaint. In the eyes of the law, it would be considered as already dealt with.
1. Acas conciliation
Acas (the Advisory, Conciliation and Arbitration Service) offers an early conciliation service called ‘pre-claim conciliation’. This could help you and your employer find a way of settling the matter and avoid the need for an Employment Tribunal claim.
The service is free and is available to you and your employer in appropriate circumstances. If you want to find out if this service may be suitable for your situation, you can call the Acas helpline on 08457 474 747.
Even after you make an Employment Tribunal claim, Acas will still be available to help you and your employer. They may be able to help you both settle the case before it gets to an Employment Tribunal hearing. If that happens, you should then withdraw your claim (see ‘Withdrawing your claim’ below, to find out how to do this). Any settlement reached through Acas conciliation is legally binding.
If you settle the matter through Acas conciliation, you will be asked to sign a written agreement called a ‘COT3’. It’s important to be aware that once you have agreed the terms of settlement, even verbally, there's no going back. If one of you then breaks the agreement, the other could sue. If you settle using Acas, their conciliation officer will let the Employment Tribunal know.
If payment due under the settlement is not made you can phone the conciliator. They can contact the respondent (the person you claimed against) to remind them of their obligations under the settlement. If payment is still not made, the settlement can be enforced through the county courts in England and Wales, or through a Sheriff Officer in Scotland.
2. Compromise agreement
It is also possible to reach a legally binding settlement by getting a private ‘compromise agreement’. This offers you compensation or something else such as a reference, in exchange for not bringing or withdrawing a claim. This type of agreement can be used if both sides have representatives and Acas is not involved.
There are strict requirements on a compromise agreement - putting it down in writing and signing it isn't enough. You must also have taken specialist advice from someone who has appropriate insurance, for example a lawyer. If you settle your case in this way, you should let the Employment Tribunal know, in writing, as soon as possible.
Compromise agreements and statutory payments
If you are entitled to Statutory Maternity Pay, Ordinary/Additional Statutory Paternity Pay, Statutory Adoption Pay or Statutory Sick Pay your employer may want to include the amounts due in a compromise agreement.
The statutory payment must made very clear in the agreement and the amount paid should be your legal entitlement. This will help remove doubt about your entitlement.
Deciding whether to settle the case
Settling the case can be easier than going through an Employment Tribunal hearing. However, the amount you get in a settlement might be less than if you did win your case. Also, your employer can attach other conditions, such as a confidentiality agreement so that you can’t tell anyone else what was agreed. If you are not sure about whether to accept a settlement offer, you should consider getting specialist advice to help you decide. Remember though, the final decision is always up to you.
Your employer may put pressure on you to accept – for example, by saying that you will get nothing if you don’t accept an offer. Or they may say that they will ask the Employment Tribunal to make you pay legal costs (called 'expenses' in Scotland). You should remember that you always have the choice and that costs are only awarded in a very small number of cases.
Withdrawing your claim
You may not be able to reach an agreed settlement, but instead decide that you do not want to go ahead with your claim. You can withdraw either your whole claim or any part of it at any time before or even during the hearing, for any reason.
If you decide you would like to do this, you need to let the Tribunal know, in writing. You also need to tell the respondent (the other person or organisation in the case) that you are withdrawing the claim. You must do this as soon as possible.
You should bear in mind that withdrawing at the last minute might lead to your employer applying for costs because of unreasonable behaviour in the way you conducted your case.