5 December 2014

By Prof Nicole Busby from the Law School, University of Strathclyde

As Acas publishes statistics on the first six months of compulsory Early Conciliation, Nicole Busby analyses what they tell us about the scheme and its consequences.

Acas has recently published statistics on the operation of the first six months of its Early Conciliation (EC) scheme. Although Acas has always offered conciliation in employment cases, the new scheme makes it mandatory for potential claimants to contact Acas before initiating a claim. An attempt to conciliate an agreement is then made which can result in a binding settlement (a COT3 agreement) or in the issue of a certificate to the claimant who can then lodge a claim with the Employment Tribunal (ET) by submitting an ET1.

The scheme was introduced on 6th April this year but did not become mandatory until 6th May. The Acas statistics cover the first six months including April when the scheme was offered on a voluntary basis. It is not surprising therefore that notifications to Acas were significantly lower in April than in the remaining five months.

Altogether Acas was contacted over 37,000 times in April–September. Although either party can make the notification, the vast majority were made by employees (or, to be more specific, ex-employee) over the six month period, with 36,162 employee notifications and 1,242 employer notifications. Of those contacted by Acas following the notification, only about 10% refused conciliation. Again this is unsurprising as the process does at least provide both parties with the opportunity to hear what the other has to say.

From an employee’s point of view, the introduction of fees for lodging claims at the ET means that this might be the only stage at which some form of response to an allegation can be triggered – more of which later – but early engagement does not, of course mean that the parties will actually reach agreement through conciliation and, if they choose not to, neither are they compelled to proceed to ET. So, what happens to cases after notification?

Acas are able to show the outcomes for the 17,162 cases for which notifications were made between April and June and this provides some interesting data. In that period, 18% of the contacts resulted in a COT3 settlement, 24% went on to become ET claims by the end of October, and 58% did not result in either outcome. Of course, there may be a time lag in respect of some cases which may not yet have been presented as ET claims, but the statistics do tell us that the majority of cases are not settling nor are they going to ET.

Why might this be? One possibility is that, following the initial engagement with Acas and taking into account the employer’s response, employees deduce that their claim is unlikely to succeed in the ET and decide not to proceed. If so, perhaps the mandatory nature of the scheme can be attributed with having ‘weeded out’ a high number of weak or even vexatious claims and that would be a positive effect. However, another (far more likely) explanation is that, having decided that conciliation is not a suitable means of resolving the particular dispute (perhaps because the issues at stake are too contentious), would-be claimants are confronted with the next barrier to accessing justice – ET fees.

The introduction of mandatory early conciliation alongside the imposition of fees for claimants to the ET has created an interdependent relationship between the two regimes so that neither can be considered in isolation. The reasons why employees are notifying Acas of employment disputes but not ultimately pursuing their claims may be many and varied but at least some must be attributable to the barriers to justice represented by the fees regime – see my previous blog on this.

In line with normal practice, Acas will conduct a survey of EC service users, the results of which will be available in 2015. This will tell us more about individuals’ experiences of the scheme as well as identifying the factors influencing decision making. In the meantime, the tangled web can be unpicked by consideration of some possible thought-processes based on findings from our ongoing research.

Firstly, for those who are without the financial resources to pay for legal advice and ET fees and who lack the support of trade unions, EC may represent the only potential mechanism for attempting to resolve a dispute. An individual navigating the current system alone can use the online process available . From the page headlined ‘Take your employer to an Employment Tribunal’, the user is almost immediately directed to the Acas website from where a further click opens a page headed ‘The free, fast and less stressful alternative to an employment tribunal for resolving workplace disputes’ at which point the notification form can be completed in a few easy steps.

On the face of it, the Acas scheme has been implemented reasonably well. There is good, clear guidance which is provided at the point that the would-be claimant accesses the online form on which the notification is made and the information required is minimal: name and contact details, employer’s name and contact details, dates of employment, and the date on which the event about which the employee intends to complain about took place. There is no requirement to identify the type of claim and this is intended to overcome the difficulties caused by the previous statutory grievance and disciplinary procedures under which the eventual claim had to match up with an exhausted grievance procedure.

However, although there is a range of information available, I wonder how many individuals making the notification without advice and support actually read and understand the ‘small print’. In other words, do all employees understand that the EC scheme is indeed a step towards formalisation of the process? Is there confusion between Acas’s role here and its general advice-giving function, for which it is undoubtedly better known among participants in our research? Of course, I am not advocating that the process should be made more complex but it is easy for those ‘in the know’ to overestimate the knowledge and awareness possessed by individuals who, through necessity, are increasingly having to handle their own employment disputes up to and including self-representation at the hearing.

One reason why notifications might not convert into ET claims is that the process might be triggered merely as a way of accessing information which should be available by other means but which, due to changes to other parts of the system, no longer is. I’m not talking about the disclosure of complex information that might be used to inform the development of sophisticated strategies here. Mere notification will not provide that. Rather, I mean that the EC notification might be the only way that an ex-employee can trigger any acknowledgement from their former employer that anything has actually happened and any idea of what their response might be. Under the pre-fees regime, employees with non-communicative employers/ex-employers or those who no longer felt able to deal with a dispute through direct means were able to procure certain information by submitting an ET1 and waiting for the ET3 response. However, with the introduction of a fee at the point of entry to the system (the issue fee) and the repeal of the discrimination and equal pay questionnaire procedure, it is increasingly difficult for some would-be claimants to access any information which is relevant to their case.

Moving on, let’s assume that a would-be claimant does understand the relevance of notifying Acas and is clear that, if EC fails, the next step involves the payment of a fee for submission of the ET1. There are still a range of potential pitfalls which, if coupled with the imposition of fees for claimants to the ET, might lead to a decision not to proceed. For example, the timing of the notification is critical. In lots of cases, the problem or dispute that has led to the decision to attempt to make an ET claim might persist beyond the point at which the Acas notification has been made. Victimisation that occurs as a result of a notification being made is one example. In such circumstances is the employee required to make a separate, later notification to Acas? The answer to this question is unclear and so it would be prudent to do so, otherwise it is possible that the later complaint cannot be considered by the ET if the case does go to a hearing.

Another timing issue might arise in relation to dismissal cases, specifically in relation to constructive dismissals: in such cases, the dismissal will not be deemed to have occurred until the employee has resigned and so the Acas notification should not be made until after that point. A further difficulty might arise in relation to the identification of the employer which is not always as straightforward as it should be, particularly for agency workers. Identifying multiple respondents in cases involving the employer and a co-worker, for example in a discrimination case involving harassment, might cause problems. In such cases, Acas notifications should be made for each respondent as the ET could refuse to hear the case against the actual perpetrator of the harassment if that person is not identified on the notification. There are, presumably, other problems with the operation of the Acas scheme and its use as a prerequisite for lodging a claim to the ET.

In essence, it can be a minefield for those who might find it relatively easy to complete an initial notification but who then, for various reasons including confusion and/or lack of awareness, a loss of confidence in their ability to succeed and the need to make a considerable financial investment in order to submit their claim to the ET, decide to walk away rather than seek resolution.

A final point relates to the suitability of conciliation in the types of contentious cases that have traditionally (pre-fees) ended up in full hearings. Conciliation is a neutral process which is not concerned with the quality of the outcome or settlement and the measure of success is that both parties agree on the outcome. It is not concerned with the justness of that agreement. There is, thus, an implicit but clear assumption that parties know their legal rights and understand the implications of the settlement. The Coalition’s desire to keep disputes out of the ET overlooks this important distinction and assumes that potential claimants, rather than being the victims of injustices, are merely involved in disagreements with their employers. The circumstances which are likely to lead to an ET claim make it more probable that an employee will be seeking to assert legal rights rather than to reach a compromise with his or her employer. Individual decisions regarding whether to go to the ET are often driven by the notion that the dispute can only be remedied by a full hearing before an impartial judge illustrating that formalism is not always a bad thing. Early conciliation is unlikely to be a viable option in such cases, and with the imposition of ET fees, the most worrying conclusion is that many disputes now simply go unresolved.