Whisper it quietly but Acas early conciliation does seem to be settling down well and may yet prove the critics wrong. That is what Acas wants us to believe, but are they right?

Last week Acas released statistics to mark 6 months since EC was first introduced. This is the process whereby claims cannot be instituted in the Employment Tribunal unless and until Acas has been notified and given an opportunity, with the consent of the parties, to attempt to conciliate before litigation is progressed. 

Thusfar, we know that (since 6 April) some 37,404 cases have been referred for EC, and that approximately 1,600 individuals are using the new system each week. We continue to see relatively few employees (10%) and few employers (10%), choosing to reject EC. 18% of cases achieved settlement via a COT3. Of the remainder, 58% did not progress to the Tribunal (although these may also include cases where the employee decided not to proceed after having spoken to a Conciliator and/or where settlement reached in conciliation, was not then ratified formally via a COT3). 24% did go on to litigate.

So what does all this and anecdotal feedback from Acas mean in terms of the ongoing debate about EC?

Firstly, all those who felt Acas would be overwhelmed by the number of notifications and would not have the resources to cope, have been proved wrong. On the contrary, the organisation seems to have been coping very well. This is even with the uplift in cases they have had to contend with as a result of the recent (EAT) decision that regular non-guaranteed overtime had to be included in holiday pay calculations.

Before we get too carried away, it must be recognised that Employment Tribunal (“ET”) fees, introduced in July 2013, have dealt a crushing blow to the majority of cases that would otherwise have entered the system. The number of tribunal applications since has quite literally fallen off a cliff which is in turn going to affect the number of cases that will go to EC. 

Of potential concern is the fact that many cases that are not settled through EC or otherwise, do not go on to the Tribunal.  Of course, if that is simply because they are “try on” type cases, no one will be worried. However, if they are legitimate claims that are prevented from proceeding because they have been rendered uneconomic, that may be another matter. Acas acknowledge further research is required to determine what the true explanation is. 

We know Acas has ironed out a few starter gremlins in the process which is good news. For example, they have backed down from not wanting to have details of a party’s representative inserted into the EC Conciliation application form. Many parties preferred that their representatives carry out any discussions with Aacs on their behalf, and the government is now redesigning the forms accordingly. 

What still needs attention, however, is the confusion that is created if the potential Claimant gets the name of the employer wrong.  This is far easier to do than one might think, particularly with so many corporate restructures, public sector reorganisations and outsourcing of one sort or another being almost commonplace. The rules are in need of simplification as it can hardly be right that Respondents can take advantage of inadvertent errors in that respect. Hopefully the way out of this potential quagmire will be found soon. 

Finally, EC is not simply about settling cases within the fixed period of 4 weeks or the 2-week extension. Talks can continue thereafter. Apparently some 35% of settlements were achieved after the EC certificate was issued.  This seems very much in line with mediations, where many cases settle in the weeks that follow a mediation rather than on the day itself. 

All in all EC does appear to have been a success. It seems extremely unlikely to be withdrawn after the first year through lack of funding or otherwise. So it takes its place within our new system of employment dispute resolution, which now looks very different to what went before. Knowing how best to deal with this process for the maximum benefit of our Clients, is something we must all quickly master.

Richard Fox, head of employment law, Kingsley Napley LLP

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