In May 2014 the mandatory Acas Early Conciliation service was introduced for all potential claimants in an attempt to encourage settlement outside of the Employment Tribunals. Acas has now published an independent research paper on the first year of Early Conciliation, collating quantitative and qualitative data from claimants, employers and their representatives. This briefing summarises the key findings and looks at how effective Early Conciliation is as an alternative method of dispute resolution.

Background

Acas has a long established duty to promote the resolution of claims in an effort to avoid a full hearing at the Employment Tribunal (ET). Before Early Conciliation (EC) was introduced, there existed the Pre-Claim Conciliation service, which was offered to callers of the Acas helpline judged likely to become involved in a potential EC claim. However, since 2013 there have been significant changes in policy in an effort by the Government to encourage alternative dispute resolution and cut costs.

In July 2013, a fee for making ET (and EAT) claims was introduced. The introduction of fees had a marked effect on the number of ET claims – between April and June 2014 there was a 71% fall in individual claims in comparison to the same period in 2013. Then, in April 2014, a non-mandatory EC service was made available, followed by the introduction of the mandatory service on 6 May 2014.

Prospective claimants must now notify Acas of the claim they intend to make, either by telephone or by completing an EC form. Acas then contacts the claimant and employer to establish whether they are interested in engaging with the EC service with a view to reaching a settlement.

Acas has published the first evaluation of EC based on the surveys of a representative sample of claimants, employers and their representatives whose EC cases concluded between September and November 2014.

Engagement

In the first year since the EC service was implemented, Acas has dealt with over 83,000 EC cases. Three out of four employees and employers agreed to try EC in its first year.

However, when asked the principal reason for accepting the offer of EC (following mandatory notification) the most common reason provided by claimants was "because I had to", suggesting a possible misunderstanding that participation in EC is mandatory in the same way as notification. However, not all candidates were so disenchanted - the second most cited reason was "to reach a resolution".

In contrast, over half of employers who declined to participate in EC said it was because they considered that they had "no case to answer".

EC Outcomes

Nearly half of all claimants (48%) who made use of the EC service either reached a formal settlement or were otherwise provided with assistance by Acas such that they did not make an ET claim. Of the claimants for whom EC did not result in a formal settlement, 55% had submitted or were planning to submit an ET claim at the time of the survey, whilst 45% had decided against this course of action.

Of those who chose not to submit an ET claim, the most cited reason was that the ET fees were off putting. Nonetheless, 61% of this group did cite Acas as a factor in helping them decide not to submit a claim.

Whilst the above figures indicate a positive trend towards the settling of claims, 43% of claimants reported that they would have tried to settle through some other means had EC not existed, and would only have submitted an ET claim if settlement discussions had failed. Employers took a different view, with most (42%) believing that had EC not existed, the claimant would have submitted a claim to the ET without first attempting to settle the dispute.

EC may not be the primary catalyst for successful settlement but there is one clear benefit: 96% of claimants confirmed that their settlement sum had been paid. This is in stark contrast to the 63% of claimants who received the financial sum they were awarded by an ET. The settlement sums themselves varied greatly, but the average sum received was reported by claimants to be £1,300 (the average sum reported by employers was £1,200).

Satisfaction

The majority of those who chose to engage with EC were satisfied with the overall service they received (79% of claimants and 86% of employers). The combined level of satisfaction of all users of the EC service (i.e. claimants, employers and both sets of representatives) was 83%.

However, satisfaction at the outcome of the EC process was not as high, with a combined level of satisfaction at 57%. Outcome satisfaction varied considerably depending (unsurprisingly) on whether or not a formal settlement was reached – 81% when settled versus 45% when not.

Satisfaction was positively impacted by the time and cost saving benefits of EC, as highlighted in the qualitative research: it "resolves the issue more quickly" and "it is cheaper". This is supported by the numbers. Claimants spent an average of six hours on their dispute, compared to an average of six days on disputes during ET cases. For employers, the average amount of time spent on a dispute was five hours, in comparison to five days for ET cases.

Comment

The above statistics and qualitative data provide some insight into how the introduction of mandatory EC is impacting would-be claimants, employers and ultimately the number of ET claims issued.

It is hard however to isolate the change that EC alone has brought about. The figures, for example, seem to show that claimants are keen to engage with the EC service. However, the qualitative data suggests that a significant proportion of claimants misinterpreted the EC service and thought that they had to engage with it in order to bring an ET claim. This is not the case – only a notification to Acas is required.

Arguably more crucial to judging the tangible success of EC is the impact of the service on the number of claims that settle before a claim form is issued. The figures are positive – almost half settled. However, caution must be used when attributing this success to the EC service alone. The EC service was introduced against the backdrop of a new regime of tribunal fees which undoubtedly acts as a deterrent in itself. The data provided in the Acas Research Paper does not sufficiently explore whether or not cases which settled ostensibly due to the EC service would have done so anyway as a result of ET fees.

Further, the figures provided do not draw any distinctions between weak or vexatious claims against those with genuine merit. Thus we do not know whether EC can be said to have reduced the number of unmeritorious claims that continue to the ET.

A second stage of the EC evaluation will look at what happens to claimants who choose to lodge a claim with the ET and the impact that conciliation has on their next steps. This research will be published later in the year.