The future of ACAS Early Conciliation

Claire McKee
Associate
Dentons UKMEA LLP
Blogger
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ACAS Early Conciliation ("EC") was introduced on 6 April 2014 as part of the Government's reform of employment law at that time. Its aim was, and continues to be, to provide both employees and businesses with an opportunity to resolve workplace disputes without the need to make a claim to an Employment Tribunal (ET).

ACAS (and predecessors) have acted as a "buffer" in respect of employment disputes since as far back as 1896 when the government of the day launched a voluntary conciliation and arbitration service, giving free advice to employers and unions on industrial relations and personnel problems. Nowadays, and particularly with the advent of EC, ACAS are much more involved in the prevention of disputes and problems before they arise or develop rather than assisting throughout litigation (although that also remains very much part of their remit).

During its first year, EC notifications covered over 100,000 individual disputes (including group claims). Of notifications between April 2014 and December 2014, 15% resulted in a COT3, 63% did not progress to an ET claim whilst 22% did, with more than half of those being subsequently resolved by ACAS. The most recent statistics (April 2017 – June 2017) show that this trend has largely been replicated with ACAS receiving around 1800 notifications per week. 19% of those resulted in a COT3, 64% did not progress to an ET claim whilst 17% did. 

What is of course important to remember is that from the inception of EC up until July 2017 ET fees were in force. This will no doubt have had an impact on the numbers of prospective claimants contacting ACAS for EC in the first place, as well as the number of prospective claimants who go on to make an application to the ET if EC does not have the desired outcome (for most, compensation).

Therefore, it could be said that the aim of EC to resolve workplace disputes without the need to make a claim to an ET has been successful. Whilst of course we do not know the value of those 15%-19% settled by way of COT3, it is assumed that both parties were satisfied with the outcome or an agreement would not have been reached. As to whether between 60% and 70% of notifications which go no further (certainly not to the ET in any event) could be considered a positive outcome though, is up for debate. Certainly less claims are brought to ET but whether or not that is because the dispute has been resolved and a claim is not required or whether the prospective claimant simply wasn’t able or prepared to pay the ET fee is uncertain.

Whether the recent abolition of ET fees will give EC a new lease of life in the future remains to be seen. With the Supreme Court Justices, in finding ET fees unlawful, commenting that "Conciliation can be a valuable alternative…but…the ability to obtain a fair settlement is itself dependent on the possibility that, in the absence of such a settlement, a claim will be presented to the ET", our prediction is that it is likely notifications will increase.

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