Acas has published its first figures on the operation of the early conciliation scheme that came into effect in April this year. The figures they have released cover the period of 6th April 2014 – 30 June 2014 and show that Acas received 17,145 notifications in that period, all but 540 of those coming from the employee rather than the employer.
Acas says that the notifications came in at about 1,000 a week during the run in month of April and that this figure went up to 1,600 once notification became mandatory in May. This is. says Acas ‘in line with the numbers of notificatons we expected to receive’.
The test, of course, is not how many people contact Acas, but whether that contact results in settlements that avoid the need to go to Tribunal. Acas is encouraged that only 7 per cent of employees (1,122) and just 9 per cent of employers (1,483) rejected the offer of conciliation. But of course most parties will want to hear what offer the other side will make before deciding what to do. What matters is how many settlements are reached.
These are still early days, as Acas recognises, but these first figures show that in the period covered, 11,355 cases reached the end of their early conciliation period (usually one month). Of those 1,873 cases ended with a settlement – that is 16.5 per cent.
The next question to answer is a difficult one. Is that a big number? Acas gives no indication of whether a settlement of 16.5 per cent is regarded as encouraging or disappointing. There is obviously still a long way to go before we understand exactly what the impact of early conciliation has been. At this stage, I would make a couple of observations.
Firstly, we have no information about the level of the settlements or how many of the employees had legal advice. There is a concern that potential claimants have not had proper advice about the strength of their claim or the amount that they are likely to receive if successful. Reaching a settlement is good – but not if employees are being rushed into doing a bad deal. If an employer proposes a settlement agreement that needs to be signed off by the employee’s legal adviser – but there is no such protection in relation to early conciliation and Acas obviously can’t advise the parties on whether a proposed settlement is a good one or not.
Secondly we need to remember that conciliation is not a new service. Acas has always conciliated in individual employment disputes and a high proportion of cases have always been settled in this way. It is not clear what savings – if any – are made by the parties who have settled at the early conciliation stage. Would they have settled anyway, and, if so at what point? Early conciliation is fine if it suits the parties. The controversy in the scheme is that the employee must contact Acas before bringing an ET claim.
I am hugely supportive of the Acas conciliation service as a whole – but remain deeply sceptical about the value of this compulsory early conciliation scheme. What we have not seen yet are cases where a dispute arises about time limits or whether an employee’s notification to Acas properly related to the claim that is subsequently brought. When those cases start coming through – and they will – then I think the rule on contacting Acas before bringing an ET claim will be seen as an overly complicated and unnecessary requirement.
Good post, Darren. I have a growing feeling that measuring the impact and cost/benefit of EC is going to prove to be a very complex – perhaps even impossible – task. Looking back at the BIS consultation documents and RIAs, I can’t see any straightforward prediction of the COT3 ‘settlement rate’ by which to judge the 16.5% figure – the final RIA on EC is couched in terms of the overall reduction in ET claims resulting from EC, rather than ‘outcome of EC’. That RIA predicted a 17% reduction in ET claims, which we will be able to begin to test when the next set of quarterly tribunal stats come out next week. However, the COT3 settlement rate of 16.5% is v similar to that of 15% in this analysis of PCC in 2012 (see table 6.1 on page 30): http://www.acas.org.uk/media/pdf/p/t/Evaluation-of-Acas-Pre-Claim-Conciliation-Service-2012.pdf
However … this blog post by Acas’ Andrew Wareing (a v good egg) cites a 24% COT3 settlement rate under PCC, and then explains away the difference between that and 16.5%. Whatever, I think it is just a tad earlier to conclude, as Andrew does, that EC is “achieving precisely what was intended”! http://www.acas.org.uk/index.aspx?articleid=4964
I may be being dim, but why is the successful settlement percentage calculated using the 11,355 cases which reached the end of the EC period, rather than the total number of notifications of 17,145? If the latter is used, it takes the success rate of EC down to 10.9% rather than 16.5%. Which by anyone’s calculations is a pretty pitiful figure.
Perhaps I have missed the logic behind the calculation used – I would be really interested to understand it though.
I think Acas would say that there is still the possibility of reaching a settlement in cases that are ongoing at the end of the first quarter. Knowing that for a number of those cases no settlement has been reached ‘yet’ doesn’t really tell us about the success or otherwise of early conciliation.
Ahh, yes of course. I was right – I was being dim.