Acas early conciliation "no substitute" for an effective tribunal system

Author: Darren Newman

Darren Newman

Consultant editor Darren Newman maintains that the Acas early conciliation service provides no real substitute for dealing with claims properly in an employment tribunal system open to all.

Of late we have become used to low levels of employment tribunal claims, so the recently published statistics from the Ministry of Justice did not cause much of a stir. However, we should not forget how dramatic the fall has been. In the first quarter of this year there were 4,206 individual claims submitted to the employment tribunal. That compares to more than 12,700 in the same quarter of 2013. The fall in the number of claims following the introduction of employment tribunal fees was immediate and dramatic - and has been sustained now for more than two years. There really can be no doubt that it was the introduction of fees that led to this collapse in numbers - no other plausible explanation has ever been put forward. Nor can there be any doubt that, among those who might have brought a tribunal claim but did not, there are many who would have had a good case that would have succeeded.

The evidence for this is incontrovertible. The Ministry of Justice statistics show the outcome of various tribunal claims quarter by quarter, so it is possible to see how success rates have varied over time. For example, in the first quarter of 2012, just 10% of unfair dismissal cases disposed of were successful at a hearing - with 40% being settled through Acas. If the introduction of fees had had the effect of deterring principally the most ill-conceived and weak claims, we would have expected the success rate to rise. Logically the claims left in the mix would be the strongest claims where the employee was most likely to win. However, when we look at the unfair dismissal cases disposed of in the first quarter of this year, we find that 8% were successful and 35% were settled through Acas. The fee system has made no real difference to outcomes - so weak and strong cases are being deterred in broadly equal proportions.

Those who defend the employment tribunal fees often point to the availability of the Acas early conciliation service as though that provides a viable alternative route for those seeking to challenge the way in which they have been treated by their employer. Potential claimants now have to contact Acas before bringing a claim, although they do not have to participate in any conciliation process. We now have a full year of figures from Acas showing that, between April 2015 and March 2016, the organisation received 92,172 notifications (4,280 of which were initiated by the employer rather than the employee). The high number of notifications is often portrayed as a measure of success, but we have to remember that this is a compulsory step for those considering a tribunal claim. It is equally unremarkable that the overwhelming majority of those (on both sides) contacted by Acas agree to participate in the process - as why would they not? The key question is whether or not Acas is brokering settlements at this early stage, meaning that there are fewer disputes going on to become tribunal claims.

Here the evidence is mixed. Just 18% of cases where Acas was contacted resulted in a tribunal claim. But only 17% resulted in Acas brokering a settlement. That does not strike me as being a very high percentage. It would be good to know what sort of claims are settled in this way and what the average level of settlement is - but Acas does not give us that data. What is clear, however, is that a majority of those who initiate early conciliation - some 65% - do not go on to bring tribunal proceedings, despite the lack of a settlement.

In any event, conciliation is no substitute for a potentially good claim being dealt with properly. Nobody can be against resolving disputes without the need to go to a full tribunal hearing. However, we should not overstate what Acas actually does in the conciliation process. There is no sense in which Acas is adjudicating on the dispute or pushing one side or the other into acknowledging responsibility for what has happened. Acas acts as a go-between, helping each side understand where the other is coming from and passing on any offers of settlement that may be made. Its conciliators may talk in broad terms about how the tribunal process will operate. However, they do not assess the strengths and weaknesses of a case, much less advise either party what the likely outcome would be. In a recent evaluation of the whole conciliation process, just 40% of employers that settled believed that Acas involvement was a factor in the decision.

Acas conciliation works best when both sides are properly advised and represented. That way they can be confident that they are reaching a sensible deal and not massively miscalculating their chances in the tribunal. My biggest problem with the early conciliation scheme is that many people will contact Acas before they have been properly advised and will not know what a sensible settlement looks like. A responsible adviser will warn a client about accepting an unreasonably low offer, but an Acas conciliator is in no position to do this. I worry that some employees may think that contacting Acas is a way of having their claim "dealt with" by some form of authority and do not understand the limitations of the conciliation process. Perhaps some think that whatever emerges in the early conciliation process is the best that they are going to get and that there is no point in going down the tribunal route if the employer is not prepared to make an offer.

The lesson for employers here may be that it pays to send a clear message in early conciliation that the employee's claim will be resisted. On the other hand, perhaps the lesson for employees is not to accept such assertions at face value and to take proper legal advice on the strength of their claim. However, the lesson for the Government should be that employment law is about more than encouraging the parties to do a deal. It is about protecting the rights of employees in the workplace and ensuring that justice is done when those rights are breached. Early conciliation is no substitute for an employment tribunal system that is open to all and the current system falls well short of that ideal.

perspective@xperthr.co.uk