The moment an ET1 claim form is submitted to the Employment Tribunal, the atmosphere of a legal dispute changes. For many claimants and respondents across England and Wales, there is a common misconception that once the “green button” is pressed and the litigation process begins, the parties are locked into a trajectory that must end in a final hearing. This is simply not the case.
At Blackstone Solicitors, we often advise clients that the tribunal doors are never truly locked against a compromise. In fact, a significant majority of claims filed in the UK never reach a full merits hearing. They are resolved behind the scenes. Settling a claim after it has been filed is not only possible but frequently encouraged by the tribunal system itself.
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For a free initial discussion with a member of our New Enquiries Team, get in touch with us today. We are experienced in dealing with all the legal aspects of Employment Law, and once instructed, we will review your situation and discuss the options open to you in a clear and approachable manner. Early expert legal assistance can help ensure you are on the best possible footing from the start and also avoid the stress of dealing with these issues on your own. Simply call us on 0345 901 0445 or click here to make a free enquiry and a member of the team will get back to you.
The Window for Settlement: It Is Never Too Late
One of the most vital things to understand about the legal landscape in England and Wales is that you can settle a claim at almost any stage of the proceedings. Whether you have just received the response from the employer (the ET3) or you are standing on the steps of the tribunal building on the first morning of the hearing, the option to reach an agreement remains on the table.
In some rare instances, parties even reach a settlement while the Employment Judge is deliberating on the final judgment. The law favours the resolution of disputes through mutual agreement because it preserves judicial resources and provides both parties with a certain outcome. At Blackstone Solicitors, we have successfully negotiated settlements at every imaginable milestone of the litigation journey.
Why Consider Settling After Filing?
The decision to settle after litigation has commenced often stems from a shift in perspective. As the case progresses, several factors come into play that may make a guaranteed settlement more attractive than an uncertain tribunal award.
- The Reality of Costs
Even though the Employment Tribunal is generally a “no-costs” jurisdiction—meaning each side usually pays their own legal fees regardless of who wins—the financial burden of a multi-day hearing can be substantial. For an employer, paying a settlement sum may be cheaper than paying a legal team to defend the case for a week. For an employee, a settlement ensures they aren’t left with a pyrrhic victory where their award is swallowed by legal costs.
- Risk Management and Certainty
A tribunal hearing is inherently unpredictable. Witnesses may perform poorly under cross-examination, or a judge may take an unexpected view of the evidence. By settling, you take control of the narrative. You decide the amount, the timing of payment, and the terms of the departure, rather than leaving it in the hands of a third party.
- Emotional Toll and Privacy
Litigation is draining. It requires revisiting difficult memories and facing adversarial questioning. Furthermore, tribunal hearings are public. Settling allows for a confidential exit, often including non-disclosure clauses that prevent the details of the dispute from becoming public knowledge or damaging future career prospects.
The Three Main Paths to Settlement
When a claim is already “in the system,” there are three primary ways to formalise a settlement in England and Wales. Each has its own procedural requirements and strategic benefits.
ACAS Conciliation and the COT3 Agreement
ACAS (the Advisory, Conciliation and Arbitration Service) plays a pivotal role in the tribunal process. Even after a claim is filed, an ACAS conciliator remains assigned to the case. If the parties reach an agreement through ACAS, it is recorded on a document known as a COT3.
The beauty of a COT3 is its simplicity. It is a legally binding document that does not require the same level of granular detail as a full settlement agreement, yet it effectively ends the tribunal proceedings. Once the COT3 is signed, ACAS notifies the tribunal, and the claim is stayed or withdrawn.
The Formal Settlement Agreement
While a COT3 is common for simple monetary settlements, more complex disputes often require a formal Settlement Agreement. This is a detailed contract where the employee agrees to waive their right to pursue the specific tribunal claim and any other potential claims they might have.
Because this is a statutory contract, the claimant must receive independent legal advice from a qualified solicitor for it to be valid. Blackstone Solicitors regularly acts as these independent advisors, ensuring that the terms are fair and that the employee understands exactly what rights they are relinquishing.
Judicial Mediation
For complex cases, such as those involving discrimination or whistleblowing that are scheduled for long hearings, the tribunal may offer Judicial Mediation. This involves a trained Employment Judge acting as a mediator to help the parties reach a settlement.
This process is confidential and takes place away from the courtroom. If a settlement is reached during judicial mediation, it is usually formalised via a COT3 or a settlement agreement. It is an excellent way to get a “steer” from the judiciary without the risk of a formal judgment.
Strategic Milestones for Negotiation
In our experience at Blackstone Solicitors, there are specific points in the tribunal timeline where the “pressure” to settle increases. Understanding these can help you time your negotiations for maximum effect.
After the ET3 is filed: Once the employer has set out their defence, both sides have a clearer picture of the battle lines. This is often the first real opportunity to assess the strength of the opposing arguments.
Following Disclosure: This is the stage where both parties must share all relevant documents. If a “smoking gun” email or a contradictory piece of evidence comes to light, the side at a disadvantage may suddenly become much more interested in a settlement.
Witness Statement Exchange: Seeing the written testimony of the other side’s witnesses can be a sobering experience. It is often the final moment of clarity before the parties commit to the trial.
The Pre-Hearing Review: When a judge makes preliminary rulings on issues like disability status or whether a claim was filed on time, the shift in leverage can trigger a quick settlement.
The Anatomy of a Post-Filing Settlement
When settling a claim that is already active, the agreement needs to cover more than just a sum of money. A robust settlement drafted by Blackstone Solicitors will typically include:
The Settlement Sum: Clearly distinguishing between the ex-gratia compensatory element (the first £30,000 of which may be tax-free) and any contractual payments like notice pay or holiday pay.
Withdrawal of the Claim: A strict requirement for the claimant to write to the tribunal to withdraw the claim within a specified timeframe.
The Reference: An agreed form of words for any future employers. This is often one of the most valuable aspects of a settlement for an employee.
Confidentiality and Non-Derogation: Ensuring that neither party speaks ill of the other and that the terms of the deal remain private.
Tax Indemnities: Protecting the employer in case HMRC later decides that more tax should have been paid on the settlement sum.
Challenges in Settling Late in the Day
While you can settle “on the steps of the court,” it is not without its complications. If you settle very late, you may still be liable for certain hearing fees or the costs of witnesses who have already travelled. Furthermore, the psychological pressure of a looming hearing can lead to rushed decisions.
This is why we recommend starting the dialogue as early as possible. Even if an initial offer is rejected, keeping the lines of communication open through your solicitors or ACAS ensures that if the other side’s position softens, you are ready to move quickly.
How Blackstone Solicitors Can Assist
Whether you are a claimant seeking justice or a respondent protecting your organisation, navigating a tribunal claim requires a steady hand. At Blackstone Solicitors, we serve clients across England and Wales with a focus on tactical brilliance and commercial realism.
If you have already filed a claim, or are defending one, we can:
Evaluate your position: Provide an honest assessment of your chances of success and the potential value of the claim.
Handle the negotiations: Act as the buffer between you and the other party, using our experience to drive the settlement figure in your favour.
Draft the Agreement: Ensure that any COT3 or Settlement Agreement is watertight and protects your interests long after the tribunal file is closed.
Liaise with ACAS: Manage the conciliation process to ensure your voice is heard and your goals are met.
Is Settling a Sign of Weakness?
There is a lingering sentiment among some litigants that offering to settle is an admission that their case is weak. In the modern legal system of England and Wales, the opposite is usually true. Settling is a sign of litigation intelligence. It shows that a party is prioritising their long-term interests, financial health, and emotional well-being over the desire for a “day in court” that may not deliver the expected catharsis.
The tribunal judges themselves often begin hearings by asking if the parties have explored the possibility of a settlement. They recognise that a mutually agreed outcome is almost always superior to a forced judgment.
Conclusion: Taking Control of Your Outcome
Can you settle a claim that has already been filed in the tribunal? Absolutely. In many ways, filing the claim is simply the beginning of a higher-level negotiation. It signals that you are serious, which often forces the other side to take the prospect of a settlement more seriously than they did during internal grievance procedures.
At Blackstone Solicitors, we are committed to helping our clients throughout England and Wales find the most efficient path to resolution. If you are currently in the midst of a tribunal dispute and want to explore the possibility of a settlement, do not wait for the hearing date to arrive. Taking proactive steps today can save significant stress and cost tomorrow.
Contact our team to discuss your case. We provide the robust, clear, and expert legal support needed to turn a stressful tribunal claim into a successful, settled conclusion.
Key Takeaways for Settlement
Settlement is possible at any time: From the day the ET1 is filed until the judge delivers the verdict.
ACAS is your ally: Use the assigned conciliator to keep negotiations moving without appearing desperate.
Tax efficiency matters: Ensure the settlement is structured to take advantage of the £30,000 exemption where applicable.
Legal advice is mandatory: You cannot waive your tribunal rights in a settlement agreement without a certificate from a qualified legal advisor.
How to Contact Our Employment Law Solicitors
It is important for you to be well informed about the issues and possible implications of Employment Law. However, expert legal support is crucial in terms of ensuring a positive outcome to your case.
To speak to our Employment law solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Please visit our website to see all the Employment Law services we offer: https://blackstonesolicitorsltd.co.uk/employment-law-services/
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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