Early conciliation: what will success look like?

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.

About Darren Newman

Employment law consultant, trainer, writer and anorak
This entry was posted in Early conciliation, Employment Tribunals, Enterprise and Regulatory Reform Bill and tagged , , . Bookmark the permalink.

2 Responses to Early conciliation: what will success look like?

  1. Pretty much agree with every word of this. Voluntary Conciliation good, procedural complexity bad.

  2. Rhys Edwards says:

    Agreed! At least after you changed the title of the article. Maybe you had a Freudian slip (okay, your spell checker did) because its exactly what this is all going to come down – consideration, or if there is any dubiety – it’ll still be cold, hard cash and arithmetical juggling that governs the system.

    I’m sure like many other EL litigators, ACAS conciliators are people that I cherish. The relationship we all have with them is so crucially important in the job of getting our clients the best possible deal that I almost see that relationship management piece as being more important than being a savvy case manager or the world’s finest cross examiner. I’m not suggesting conciliators are anything other than neutral, but it certainly helps the cause if you have good communication with them and they understand that you know what you are doing.

    Until a few days ago, when I flipped jobs to a role that is going to be predominantly repping employers, I was advising unrepresented potential claimants – and it was a salutary experience. In doing that I’ve seen the consequences of the emerging fee regime first hand – and ok, its early days – but generally it appears to me that it results in a largely crestfallen and despondent population of disgruntled ex-employees.

    So as of 6th April this year, I’ve got quite excited about early conciliation as a potential alternative, and maybe a real means of achieving justice?
    I’ve advised several clients (after hearing their stories and doing my best to assess potential prospects) to have a crack at the process, and they’ve been good enough to report back to me.

    Two themes emerge:

    i) I don’t know if this is an experience that others have had; but conciliators involved in the process don’t seem to be at all Claimant friendly. Of course I have the filter of disgruntled ex-employees to go on here, but the common experience seems to me to be that conciliators go in quite hard with some fairly blunt employment guidance (not advice, of course) and from the feedback that I have had, friend ex-employee is given little encouragement to continue with the process. I was a bit shocked to hear that in the 2 cases I had input into, the conciliator tried to insist that the client should take independent advice before they continued with conciliation. Of course, that in itself is potentially a good thing further down the line, but should it be contingent on the process continuing? I don’t think so.

    ii) Here’s the crux. Most employers know (from the press if they don’t take advice) that what’s most important in the whole process is that there is a fee regime in place. Commercialism is going to kick in, the ex, or soon to be ex-employer has a pretty shrewd idea of the ex-employee’s potential resources and whether they will stump up even the issue fee. Let’s face it -in the vast majority of cases, there is little incentive to settle.

    So, in my opinion I just don’t see the future in all this. I’ll be advising my respondent clients who get that phone call from ACAS to filibuster madly unless the case is completely and utterly plumb and their opponent has significant resources. I don’t like that but I know it’ll be the best advice. I’m not happy…

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