In May 2014, in an attempt to simplify the Tribunal system and make it more efficient, the Government imposed a duty on claimants to attempt early conciliation through Acas before bringing a claim. A recent report provides information about the impact of Acas Early Conciliation in its first year.
The Early Conciliation Process
The Acas Early Conciliation process (“EC”) was introduced by the Government on 6 April 2014, and became mandatory from 6 May 2014. All prospective claimants in the Employment Tribunal must now go through the EC process and obtain an EC certificate from Acas before bringing a claim.
Once the prospective claimant contacts Acas, a Conciliation Officer will explore over the period of one month, whether settlement is possible between the parties. If a party is not interested in settlement, or if the Conciliation Offer considers that settlement is not possible, an EC certificate will be issued to the claimant. Neither party is obliged to conciliate.
Acas recently published a report evaluating the introduction of the EC process. The key statistics are as follows:
- Acas dealt with more than 83,000 EC cases between April 2014 and March 2015
- 75% of employees and employers agreed to try EC in its first year of operation
- 63% of EC cases did not progress to a Tribunal claim
- 15% of EC cases resulted in a formal COT3 settlement before a claim was issued
- 22% of EC cases progressed to a Tribunal claim and, of these, more than half (51%) subsequently settled by way of an Acas COT3
The statistics show that, although there has been a big drop in Tribunal claims since the introduction of fees in 2013, a large number of employees are still considering claims and taking the first step by engaging in the EC process. The large number of prospective claimants that do not bring a Tribunal claim after going through the EC process (63%) is another indication of the significant impact the introduction of fees in the Tribunal has had. Unsurprisingly, the report provides that the most frequently cited reason for not lodging a claim after the EC process is Tribunal fees.
The key question is what proportion of the individuals who went through the EC process were genuine prospective claimants with arguable claims, and what proportion were opportunist prospective claimants simply wanting to see if they could obtain a pay-out through what is a free-to-use service. This question, and the extent to which Tribunal fees are acting as a barrier to justice more generally, will be the subject of the Ministry of Justice’s review of Tribunal fees, and the recently announced House of Commons Justice Select Committee inquiry into Court and Tribunal fees.
Finally, the fact that 51% of Tribunal claims settle through Acas but there is only a 15% settlement success rate at EC stage, shows that – although Acas has a job to play in settling disputes – parties are reluctant to engage properly on settlement until a claim has been brought. This is as expected because the way the EC process works means it is often difficult for an employer to understand a prospective claim, and therefore assess risk, before the claim is brought. The statistics therefore raise the question whether the time and resources committed to the EC process are really worthwhile.