Early Conciliation – Are you ready?

5 July 2013

We have been focussing so much recently on the introduction of fees into the Employment Tribunal, and the new (“Underhill” inspired) Employment Tribunal Rules due to come into force on 29 July 2013, that the new system for Early Conciliation (“EC”) through ACAS, has largely gone by unnoticed. Indeed we are still waiting for the Government to respond to its consultation paper although that is apparently to be expected very soon.

EC will be with us certainly by April 2014 and, by all accounts, if the Rt. Hon. Oliver Letwin MP has his way, even sooner than that. No-one should underestimate how big an event this is going to be. The vast majority of Employment Tribunal claims are, from early 2014 going to involve more engagement with an ACAS Conciliation Officer than we have seen up until now. This is because virtually all ET claims will have to pass through ACAS, who will attempt EC, before they are allowed to proceed. We will see this proposal being introduced only months after we have Tribunal fees, and it is plain that everyone (claimants and respondents) are going to have to rethink their tactics for running such cases. This could be very interesting. Whilst there are many who are suggesting that it will simply be another “step” in the action and a matter of form filling with a few inconsequential phone calls to follow. I am not so sure things will happen in that way. There are cases which may well benefit from the introduction of a third party to provide a conduit for those with a complaint. It is true that this opportunity may come far earlier than has traditionally been the case,  but it will be very much down to the ACAS Conciliation Officers to tackle any resistance (or even recalcitrance) by the parties, at these initial stages and to go out and actively “sell” the service they have to offer.

The question of resource has loomed large in the debate. The fact is that ACAS has not always found it easy to provide a uniformly high standard of service, and most have presumed that is in large part down to the restrictions on their funding from Central Government. Nonetheless, they now have a huge opportunity to upgrade their role in the field of employment disputes. The catch is that they do need to get it right first time. We have seen with Judicial Mediation, that unless those who first use the new system are suitably impressed and have a good experience such that they pass the message on to others, it can take some considerable time before such a new development gains credibility. If it ever does.

Nonetheless despite the “cuts”, it does look as though the Government has decided to resource the new project adequately to allow for its launch. (We shall wait and see what happens in subsequent years but that is another matter). ACAS are busy preparing for it, and it is now down to us, the practitioners, to do likewise.

It seems the Government anticipates great success with this project. This optimism may well be based largely upon the statistics for success at the Pre-Claim Conciliation stage which undoubtedly at the moment are looking good. Whether that is carried over into EC is by no means  easy to predict. It may be a bit like mediation in that the more you “force” parties into it, the more the statistics will start to look less rosy, as those in the system will not have “volunteered” to sign up and may well have less of a propensity to settle. Nonetheless, with Employment Tribunal fees in the background, and more comprehensive cost provisions being introduced to enhance the powers of the Employment Tribunal in this respect, we may well find these proposals play some part in turning the tide in terms of the number of employment disputes going onto to litigate before the Tribunal.

And even if EC only serves to bring forward the date cases settle, this will nonetheless involve savings, or at least that is what the Government is currently banking on.

So it is now time for us all to get our heads down and think through how we are going to deal with Tribunal claims in this new environment. Good luck!”.

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