From 5 May 2014 notification to Acas before lodging a claim with the Employment Tribunal has been mandatory (and had been voluntary for the preceding month). The procedure was introduced to provide an opportunity to resolve workplace disputes without the need to make Tribunal claims. In July's Law at Work we examined the obligations on a prospective claimant and respondent in using the mandatory early conciliation procedure (EC) prior to lodging an employment tribunal claim and the implications of doing so.
Earlier this month Acas produced an Early Conciliation Update which provides some details about the take up of early conciliation scheme between 6 April and 30 June 2014. Their findings include:
- More than 17,000 people used the Acas early conciliation scheme in its first three months. Notifications have been received at a rate of approximately 1000 a week, rising to 1,600 a week when it became mandatory to notify; the overwhelming majority from employees rather than from employers;
- Only seven per cent of employees and nine per cent of employers have rejected the offer of conciliation completely;
- Of the cases which ended their EC period during this quarter just over 16% resulted in COT3 settlements. No indication is given as to whether this figure is encouraging or not or about the extent to which employees received legal advice prior to settling (and therefore whether these settlements presented a "good" or "bad" deal for employers or employees);
- After submitting notification and having initial discussions some employees decide not to take the matter further. During the first quarter, 19% of those who then received an EC certificate told Acas that they had decided not to take any further action. However this is an informal indication as they may later change their minds.
As Acas acknowledges, it is too early to know the ultimate outcome of many of the cases, as there was still time for claims to be brought after Quarter 1 ended. It is also possible that more settlement discussions may be ongoing or take place further down the line, resulting in either COT3 or statutory settlement agreements. Commenting on this, the Chief Operating Officer (COO) of Acas said that he expects to be able to report on the ET1 rate for Quarter 1 when Acas releases its Quarter 2 Early Conciliation Update.
He also explained that the level of COT3 settlements was lower than the 24% rate achieved in Pre-Claim Conciliation (PCC) which was launched in 2009 aimed at potential tribunal cases. PCC was designed to help resolve disputes without the need for any legal claim to be submitted in the first place but were cases selected precisely because they were promising for settlement. The EC cases are not sifted in this way and they include all notifications made to Acas by individuals who complete the notification form. The COO notes that "these resolutions are now being achieved across the entire potential tribunal caseload; so whilst the rate is slightly lower, the total number of cases resolved is much higher. EC is therefore achieving precisely what was intended, the benefits of settling cases before legal action that we achieved in our PCC service are now extended to all potential tribunal cases."
Some settlements are not recorded as formal COT3 settlements such as a claim for unpaid wages where the employer accepts that employees are owed money and pays them. Acas acknowledges that as there is no facility in the EC system for a claimant to explicitly withdraw their claim these cases cannot be definitively identified through their management information.
A clearer picture may emerge over the coming months. Of interest would be a comparison of the number of claims brought following the procedure with both a similar period in 2013 (post introduction of tribunal fees) and further back in time prior to the introduction of fees.