Part of the Government’s proposals “to reduce the burdens on business” (i.e. the cost to the Government of running the Employment Tribunal system) is Early Conciliation (EC). This requires prospective claimants to contact Acas and be talked through the conciliation process before they can bring a Tribunal claim. When it is launched next year, there will be no obligation on the part of the prospective claimant or respondent then to agree to conciliation, but the hope is that enough will do so to reduce materially the number of Employment Tribunal claims brought.
Will it work? The Government’s Response to its consultation exercise on EC has now been published. Has the concept been given the subject of more careful consideration than is suggested by the numerous blatant proof-reading failures in the covering letter from Jo Swinson, Minister for Employment Relations and Consumer Affairs?
We have our concerns. The Response includes a template form to be completed by prospective claimants to request EC. Who are you, who was your employer, what did you do, when did the thing you intend to make a claim about take place? But not what do you intend to make a claim about? Since (paragraph 14 of the Response) the Government “accepts that the Acas conciliator will not be able to enter into, or facilitate agreement on, settlement discussions with a prospective respondent without being able to explain … what the prospective claimant considers the dispute to be about“, why would you not ask this at the very outset?
The Government believes that this is information which Acas will be able to obtain in its conversations with the claimant. This takes time and therefore money. Moreover, in the very next paragraph it recognises that “a consequence of this approach may be that a prospective claimant may include on any subsequent ET1 a head of claim that they had not previously mentioned to Acas and which was not therefore the subject of EC discussions with the prospective respondent“. This is all the more disconcerting because the Response fully and properly accepts at paragraph 33 the importance to the conciliation process of “better-informed individuals with more realistic expectations“.
The original pre-consultation thinking by the Government was that “it may be difficult for some prospective claimants to fully understand the nature and breadth of their dispute, and that to require them to provide such information on their request form might ultimately prevent them from being able to bring some elements of their dispute to the Employment Tribunal“. Clearly this is nonsense. All this means is that the point where those employees’ inability to particularise their claim becomes obvious falls only much further down the process and only after much more time and money has been spent by both the respondent and the Tribunal system itself. How much preferable it would be that such things were flushed out early on. The claimant will have to provide those details at some stage during the proceedings, after all.
If this position remains, employers will therefore need to be more than ever careful that any settlement agreement reached through the conciliation process is not limited to the claims and allegations relayed to them via Acas, but to all claims whether formally intimated or not. If claimants are not obliged to provide full information about their claims, then the corollary must be that those claims will sometimes be disposed of by settlement without their getting any proper airing.