The Enforcement of Acas Settlements
Acas settlements are legally-binding contracts between the parties to settle actual or potential complaints to the Employment Tribunal. They are recorded on Acas form COT3.
What should I do if the payment due under the settlement is not made?
You can phone the conciliator who can contact the Respondent to remind them of their obligations under the settlement and that the settlement can be enforced through the courts. Alternatively you can contact the Respondent yourself, or ask your representative if you have one to do so.
What should I do if payment is still not made?
You can enforce the settlement through the civil courts under s.142 of the Tribunals Court and Enforcement Act 2007. You will need a copy of the COT3 to do so. If you do not have a copy, or do not have a copy signed by the employer, you should contact the conciliator. Please note that we do not retain copies of the COT3 for longer than 6 months from the date that settlement was reached and our case closed
What is the enforcement procedure - in England & Wales?
Guidance and the application forms are on Her Majesty's Courts and Tribunal Service website at www.justice.gov.uk/forms/hmcts. These forms are also available from your local county court.
EX329 - general guidance on enforcement procedure
The courts distinguish between two types of Acas settlements - (a) settlements and (b) "conditional" settlements. A conditional settlement is one that in addition to providing that money be paid to you, also requires you to undertake certain actions.
(i) The Fast Track Scheme: you can enforce the settlement through the services of a High Court Enforcement Officer (HCEO) using the Fast Track scheme. The claim is registered with the Registry Trust (a non-profit company which operates the Registry of Judgements, Orders & Fines for the Ministry of Justice). A fee is payable which can be added to the sum recovered.
EX728 - guidance and application form for Fast Track scheme
(ii) Alternatively, you can enforce the settlement yourself or through your representative using the following forms:
N322B - form to enforce an Acas settlement, which should be sent with a copy of the COT3 to the county court which deals with the district where the person who must pay the money due lives or does business
N322B Notes - guidance on completing form N322B
b) Conditional Settlements
The Fast Track scheme does not apply to conditional settlements. The following form should be used:
N322A - this form should be sent with a copy of the COT3 to the appropriate county court as above
N322A Notes - guidance on completing form N322A
Alternatively you can, if you wish, contact a HCEO (see phone book or search online) for help with enforcement. This would be separate from the Fast Track scheme and different fees may be payable.
What is the enforcement procedure - in Scotland?
You should contact the conciliator who will send you a letter confirming that the settlement was reached as a result of the conciliator taking action. You should send that and a copy of the COT3 to a Sheriff's Officer, who will enforce the settlement through the Sheriff's Court. You can find contact details for Sheriff's Officers in the phone book, or through the website of the Society of Messengers at Arms at www.smaso.org . There are no application forms available for Scotland.
Can I recover costs, fees and interest?
Yes, the courts can order that costs and fees be paid in addition to the sum owed. Interest is also payable - currently at the rate of 8% p.a. - and accrues either from the pay-by date (if one was agreed as a term in the settlement) or from the date settlement was reached if there is no agreed pay-by date.
Where can I get help and advice?
Acas is unable to provide assistance with the enforcement process. In England and Wales you can get help on which forms to use from staff at the county court. You can also get help and advice from your representative, your trade union, a Citizens Advice Bureau, law centre, solicitor or other competent advisor.
Is an Employer Liable to Pay a Financial Penalty?
From 6th April 2016 an enforcement officer may impose a financial penalty on an employer who has not paid the full sum (including any interest) due in either a tribunal award or a COT3 settlement. A warning notice will be issued by an enforcement officer stating that unless the sum due is paid within 28 days a financial penalty will be imposed. If the sum due is not paid within that 28 day period then a penalty notice will be issued which will require the employer to pay a financial penalty, equivalent to 50 per cent of the original award, to the Secretary of State. This amount will be subject to a minimum of £100 and a maximum of £5,000. If the employer, within 14 days, then pays both the original award to the claimant and the financial penalty to the Secretary of State, the financial penalty is reduced by 50 per cent.
The Department for Business Energy and Industrial Strategy (BEIS) has published the Penalty Enforcement Form and Guide which can be found at https://www.gov.uk/government/publications/employment-tribunal-penalty-enforcement. This is a free service. This action may be taken in advance of any formal enforcement procedure. Please note that that the issue of a warning notice or a penalty is intended to encourage payment and cannot enforce it. If the award or settlement sum remains outstanding, you will have to take separate enforcement action. Information on the enforcement of tribunal awards can be found in the letter from the tribunal accompanying the award, and also at GOV.UK - Make a claim to an employment tribunal.