I should say at the outset that I am a big fan of Acas in general and its conciliation service in particular. In the hundreds of cases that I have been involved in – representing both employers and employees – a large majority resulted in a settlement assisted by an Acas conciliator. My experience is typical. For the whole of my career the statistics have consistently shown that most Tribunal claims result in a conciliated settlement.
Acas conciliation has been a crucial part of the employment law landscape for the whole history of modern employment law. However to read some of the comments made about the new early conciliation scheme you would think that a conciliated settlement is a recent innovation. We should remember that it isn’t. Nor is my scepticism about the prospects for the early conciliation scheme any comment on the vital role that Acas conciliation plays in promoting the settlement of employment disputes.
My issue is with the requirement that from 6 May all claimants must contact Acas before bringing a tribunal claim. I think that this introduces a needless complication into a system that already worked perfectly well. It complicates the issue of time limits and I think it has the potential to lead to complicated satellite litigation about whether a claim has been properly brought. Other people disagree with me of course, so we shall just have to wait and see. Perhaps early conciliation really will work.
But how will we know?
This week Acas announced that the initial reaction to the early conciliation scheme has been ‘encouraging’. This may seem premature considering that the scheme only came into force today, but for the last month they have been operating the scheme on a voluntary basis. Employees have not been obliged to contact Acas, but they have been able to use the early conciliation process if they want to.
In the course of that month Acas were contacted by 1,000 employees a week and a massive 98 per cent of them were willing to ‘give conciliation a go’.
Well, yes. Of course the employees who contact Acas when they don’t have to are willing to give it a go. In fact, what on Earth were the 2 per cent of unwilling claimants thinking of? Perhaps they just misunderstood the commencement date.
But even when employees are obliged to contact Acas I would still expect the vast majority of them to be willing to engage in the process. Why wouldn’t they? I would also expect the vast majority of the employers to contacted to be willing to engage in an attempt at conciliation.
The issue is how likely it is that the conciliation will succeed. If the employee is willing to engage in conciliation but thinks that the case is worth £100,000 and the employer is also willing to conciliate but thinks that it is only worth a nuisance settlement then how encouraging is it that both sides are willing to give conciliation a go?
The real measure of success is the number of settlements reached at this early stage. I’d be interested to know if Acas has a particular target in mind. My feeling is that employers will prove unwilling to settle cases for anything other than a nuisance amount if they don’t have clear idea of the strength of the employee’s case – and it is difficult to make a judgement about that before the claim is actually brought. I also think that employees will be unwilling to compromise on what they think the case is worth without a clear idea of how well the employer can defend the claim – and it is difficult to judge that before the employer has submitted a formal response to the claim.
We’ll wait and see. I just hope that Acas will be as open about the outcomes of early conciliation as they have been about the number of people who have initiated the process.