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Andrew Wareing: Early Conciliation so far

Wednesday 03 September 2014

Andrew Wareing, Acas Chief Operating Officer, reflects on Acas' Early Conciliation service and its origins following the service's first quarterly update.

 

Andrew Wareing

Andrew Wareing joined Acas in 1995 and is the Chief Operating Officer. He is responsible for overseeing Acas' frontline services; Early Conciliation, the Helpline and Collective Conciliation; and Acas' good practice training and advisory services.

Andrew Wareing

Begin at the beginning

Acas conciliation in employment tribunal cases dates back to the 1970s. The aim has always been to try to resolve employment law cases without the need for a tribunal hearing. In 2009 Acas introduced a new service, Pre-Claim Conciliation (PCC) aimed at potential tribunal cases. PCC was designed to help resolve disputes without the need for any legal claim to be submitted in the first place.

From the outset of the service, PCC was very successful. Acas conciliators achieved formal (COT3) settlement in around 24 per cent of cases. In a further 50 per cent of cases the potential claimant decided not to proceed to submit a tribunal claim following discussions with the conciliator, meaning legal action arose in only around one quarter of cases.  Employers, employees, representatives and indeed the taxpayer had every reason to be very pleased with the success and impact of PCC - but it had two shortcomings.

First, it was only available to a limited proportion of potential claimants - appropriate callers who contacted the Acas Helpline for assistance. Those who submitted a tribunal claim without speaking to Acas first - the large majority - didn't make use of the service.

Second, PCC could only have a chance of success where potential claimants approached Acas early enough in their dispute. Where the employee was close to the point where they needed to submit an ET claim if they were to retain their legal rights, there wasn't enough time for PCC to take place.

So, the development of Government policy to design and introduce a new Early Conciliation framework was aimed at addressing these two problems. The proposed solution was simple:

  • By requiring all potential tribunal claimants to notify Acas first of their intention to make a tribunal claim, everyone who could benefit from the early conciliation service would be offered it.
  • And by providing for the expiry of the claimant's legal limitation deadline to be placed on hold for a period of time following the notification, the new system would ensure enough time was available for conciliation to take place.

That's the basic rationale for the new Acas Early Conciliation service.

Early Conciliation - how is it going so far? 

Well, the first thing to look at is the volume of cases. In the first three months we have received around 17,000 notifications, which is in line with our expectations. We received around 1,000 per week during April, and 1,600 per week since May when the requirement to notify Acas became mandatory. This is similar to the combined number of PCC and ET1 cases that we received during the same period last year. 

Of course the thing that has changed since a year ago is that a charging regime for submitting tribunal claims was introduced in July 2013, and this had an impact on the number of ET1s we received thereafter. We don't know yet how many ET1 cases will arise following EC as many of those from Q1 will have certificates that could still be used to submit an ET claim. We'll only know once the limitation periods on this group of cases have expired, and so we expect to be able to report on the ET1 rate for Quarter 1 when we release our Quarter 2 Conciliation Update: April - June 2014.

Similar issues of timing apply to statistics on the proportion of notifications in which we achieve a COT3 settlement. However among the 11,355 cases that had ended their early conciliation period by the end of the quarter, a COT3 settlement had been achieved in 1,873, or 16.5 per cent.

The most obvious figure with which to compare this settlement rate is the one we have achieved previously in our PCC work. It is lower than the 24 per cent figure I mention above but it is in line with our expectations. PCC cases were limited to those where the claimant appeared to our expert Acas Helpline advisers to have the basis of a legal claim and an intention to exercise it, had exhausted internal procedures, and indicated in advance that they wished Acas to make contact with their (ex) employer to see if the dispute could be resolved voluntarily. These cases were therefore selected precisely because they were promising for settlement. EC cases on the other hand are not sifted in this way, they include all notifications made to Acas by individuals who complete the web notification form.

The crucial point here though is that these resolutions are now being achieved across the entire potential tribunal caseload; so whilst the rate is slightly lower, the total number of cases resolved is much higher. EC is therefore achieving precisely what was intended, the benefits of settling cases before legal action that we achieved in our PCC service are now extended to all potential tribunal cases.

COT3 isn't the whole picture

The COT3 settlement rate doesn't paint the entire picture of the benefits that arise from early conciliation. In some instances cases can be resolved but the parties don't feel they need a formal COT3 to cement the settlement. An example may be a claim for unpaid wages where the employer accepts that they owe the claimant money and just pays them. Equally, the intervention of the conciliator can help the claimant realise that they don't have grounds for a successful legal action, for example because they don't have the required length of service. In all these cases conciliation makes a material contribution to dispute resolution but does not register as a COT3 formal settlement. And because there is no facility in the EC system for a claimant to explicitly withdraw their claim these cases cannot be definitively identified through our management information.

Looking ahead

Our administrative records will ultimately allow us to measure with some accuracy the number of EC cases in which ET1 claims are subsequently submitted. But in cases where no claim is made they will never enable us to say with any certainty why that was. As is currently the case with PCC and ET1 conciliation, the only way we can establish why potential claimants acted as they did is by conducting periodic interview surveys of the parties. We'll be conducting such research in 2015 and this will tell us more about the contribution we make to dispute resolution over and above the COT3 settlement, and the factors that influence the behaviours of the parties to the dispute.

The information we have already assembled indicates that EC has made a successful start. Notifications are being received at just around the expected levels, employers and employees are engaging positively with the offer of conciliation, and Acas conciliators are working hard to provide an effective service and are achieving good outcomes. As we continue to learn more about how conciliators can best focus their efforts to meet the needs of parties and achieve the greatest impact, and as we work with colleagues in BIS to refine aspects of the policy framework of the service, I'm confident the contribution Early Conciliation can make to resolving employment rights disputes will continue to develop.

4 Comments

Add a comment+
  • Posted by Lee Handy  |  29 September 2014, 2:52PM

    Andrew,

    Acas is unable to comment on individual cases due to confidentiality. However please be assured that Acas responds personally in writing to all comments submitted to us by our web form.

    Kind regards,

    Lee Handy

    Senior Digital Comms Manager, Acas

  • Posted by Andrew Ward  |  17 September 2014, 1:25PM

    Andrew,

    Thank you; the claimant had already submitted a complaint on the web form (to which she has not received any acknowledgement of receipt). Furthermore we do not understand how/why Acas issued the EC Certificate despite no communication with the claimant's representative or the claimant! Possibly, this is yet another example of an organisation achieving a "target time" deadline to satisfy KPI/legislation requirements by any means "fair or foul" - I hope my assertion is proved wrong? The claimant looks forward to receiving a written email response to her complaint from Andrew Wareing, Acas Chief Operating Officer.

    Kind regards,

    Andrew Ward

    Director of an organisation that "listens, delivers and inspires"

     

     

  • Posted by Andrew Sutherland  |  17 September 2014, 10:08AM

    Andrew,

    Acas’ Research team are currently designing a comprehensive evaluation of EC and will be undertaking customer surveys later in 2014 and early in 2015, speaking to a full range of employees, employers and reps who have actually used EC, to elicit their feedback on the new service. This research is likely to report late Spring 2015.

    In the meantime, should the claimant in question wish to contact us with details of the case we can look into it properly? There’s a complaints form that can be completed here: http://www.acas.org.uk/index.aspx?articleid=4315

    Regards,

    Andrew Sutherland

    Senior Research Officer, Acas Research & Evaluation Section

  • Posted by Andrew Ward  |  15 September 2014, 11:39PM

    Andrew,

    Interested in your view that "Acas conciliators are working hard to provide an effective service and are achieving good outcomes". What do claimants and/or their appointed representatives think of the Acas EC service based on their experience? (I know of one claimant whose conciliator has failed to contact her representative and 6 weeks have now elapsed!!)

    Kind regards,

    Andrew Ward

    Director of an organisation that "listens, delivers and inspires"