Any employer faced with an Employment Tribunal claim since 6 May last year will be aware that the potential Claimant must go through the early conciliation procedure with ACAS before submitting a claim to the Employment Tribunal.

Last month, ACAS published statistics about the outcome of the first year of the early conciliation programme. It reported that it had received in the region of 83,000 early conciliation cases between 6 April 2014 and 31 March 2015, with only around 10% of employees and 11% of employers refusing to take part in the conciliation process (which is a voluntary process).

ACAS also recorded the outcomes of notifications that had reached a final outcome in the first 9 months (April to December 2014) as follows:-

  • 15% resulted in a formal ACAS settlement;
  • 22% progressed to an Employment Tribunal claim; and
  • Notably, the remaining 63% neither settled, nor progressed to an Employment Tribunal claim.

The most popular reason quoted in a related ACAS research survey for not proceeding with a claim was the associated Employment Tribunal fees.

The apparent benefit of the early conciliation process is the opportunity to explore settlement at an early stage, with resulting cost and time savings, before the matter progresses to an Employment Tribunal claim. The statistics however highlight that a number of employees may see the process as a way of securing a settlement, even though they will not pursue a claim. Although it is difficult for employers to differentiate between the genuine claim and any “try on”, employers could bear in mind the following:-

  • To exercise some caution in negotiating early settlements without fully assessing the risks of the claim, in terms of the nature of the claim, likely success and potential value.
  • To consider whether settlement of a particular claim during the early conciliation process could have a wider impact upon the organisation, for example setting a precedent whereby other employees may see a possible opportunity.
  • Employers are not obliged to negotiate or reach a settlement, but should in any event confirm to ACAS if they do not wish to take part (so that the process can be concluded).
  • Even if the case does not settle during the early conciliation procedure, ACAS will continue to be involved, and so there should be an on-going opportunity to settle once, and if, the Employment Tribunal claim is submitted (at which point, the claim and risk should be better understood).