New Acas-led early conciliation rules are just part of a revolutionary shake-up of the employment disputes process.
This week the Advisory, Conciliation and Arbitration Service (Acas) will publish its Annual Report and Accounts. There will be special interest from employment lawyers in its review of one particular area of its activity – its new role since April in early conciliation.
Early conciliation is one of several significant measures introduced by the government in the last year, which together are revolutionising the field of employment dispute resolution.
Since July we have seen the new ‘pre-termination discussions’ designed to deal with the difficulties caused by the case of BNP Paribas v Mezzotero and which allow employers the opportunity to sit down and have an ‘off the record’ discussion with their employees (in ‘ordinary’ unfair dismissal cases), a brand-new Employment Tribunal Rules Book, and the introduction of Employment Tribunal fees which have cut a swathe through the lower-value claims which used to be brought before the tribunals.
Early conciliation is a crucial part of the government’s drive to reduce the number of cases coming into the tribunals system.
Now, if employees wish to take their claim to the Employment Tribunal, they have to first notify Acas so as to give the conciliation officer an opportunity to try to resolve the dispute without the need for tribunal proceedings. All employees regardless of rank, income, job function and type of claim are affected. The new system represents a considerable boost to the Acas service, given the funding, endorsement and responsibility that comes with its important new role.
Some have been cynical about the Acas-led early conciliation rules, predicting they will turn out to be merely a tick-box exercise. Others, like myself, believe the introduction of early conciliation and the compulsory involvement of Acas in the employment dispute process, is a seismic change which will revolutionise the way disputes are handled and resolved in future, requiring employment lawyers to adjust our strategies and approach accordingly.
No longer is it sufficient for employers, employees and their respective legal advisers to think in a binary fashion (resolve disputes within the workplace or litigate). Now the full range of alternatives must be considered, from workplace mediation, commercial/judicial mediation to early conciliation as well as litigation itself. In the new world, it need not signify weakness to be open to discussions at an early stage.
In fact it can be seen as being eminently sensible.
In order to ensure early conciliation is a success, the profession should be looking to embrace and work positively within the new regime. But its success will also be determined by how Acas itself rises to the challenge. The quality of Acas officers is critical.
One of the questions we are frequently asked by clients in relation to Acas conciliation officers, is ‘just how good are they’? Never has this issue been more important, because if word goes round that Acas officers are ‘not up to much’, no one is going to take the system very seriously.
On the other hand if the quality is high, the reverse may be the case.
Another area employment lawyers are watching closely is the extent to which Acas officers may find themselves not merely giving information to potential litigants, but actual advice. There is sometimes a very thin line between the two, and Acas officers need constantly to be alive to the issue.
So, for example, Acas has to avoid giving advice to those who understandably do not want to incur the costs of legal representation, but who are nonetheless looking for a ‘steer’ as to what course they should follow. It is a matter of providing information only, in those circumstances.
At present Acas seems to be happy with how the new system is bedding down. Nonetheless some unforeseen wrinkles are beginning to emerge. For example, what to do when an employee is in touch part way through an appeal or a grievance process, and asks Acas to intervene on his/her behalf?
This raises the obvious difficulty that Acas has always advised that such an individual needs to try and sort matters out within the workplace, before going ‘external’. And if early conciliation is engaged early, how can the parties benefit fully from the ‘stop the clock’ mechanism and the discretionary two-week extension?
Another dilemma is where an employee calls up and says they are not really intending to bring a claim, but nonetheless asks the Acas conciliator if they can try and negotiate something for them with their employer. Of course, it is not always as overt as that, but it does highlight the need for Acas to be clear that they do not act on anyone’s behalf.
It is still early days for Acas-led early conciliation and no doubt these and other practical issues can be overcome.
By all accounts and contrary to many people’s expectations, it does seem the government has (for now) adequately resourced Acas for the new service, and the organisation does seem determined to deliver on its new mandate to ensure that its year-one funding continues.
We will, of course, only really be in a position to evaluate its success after a six-month or whole-year period has elapsed since the new rules took effect.
At that point will we be able to judge important questions such as whether Acas’s resources are being applied at too early a stage in the tribunal process, (since when litigation is about to commence, arguably, emotions are at their highest, particularly with discrimination and whistleblowing cases, rather than those involving allegations of unfair dismissal).
In the meantime, the new regime represents both an opportunity and arguably, an obligation for employment lawyers too. We have our part to play in ensuring it works as intended. Together with the new Employment Tribunal fees, there is big change afoot and whether we act for employers or employees, the pressure to reduce the cost of resolving employment disputes is inescapable.
So employment lawyers should be engaging with Acas officers, both for the benefit of our respective clients and the system as a whole.
Richard Fox is head of employment law at Kingsley Napley LLP and vice-president of the Employment Lawyers Association