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.