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Gill McCarthy: Early Conciliation - the first six months

Thursday 18 December 2014

Gill McCarthy, Acas lead for Early Conciliation, discusses what have we learnt in the first six months of the Early Conciliation service.

 

Gill McCarthy

Gill McCarthy is Director of Operational Policy and Performance at Acas. She was previously Area Director in the North West, and before that in Yorkshire and Humberside. She has led the early conciliation programme since the Government announced it in 2011.

Gill McCarthy blog profile

For most people, Acas' new Early Conciliation service started on 6 April 2014. But for me, it started in April 2011 when I moved to the team responsible for its implementation. A lot of planning and preparation went in to ensure we were ready to launch, but not everyone was convinced that it would work: would Acas be overwhelmed; would employers be willing to talk to us; was it a return to the bad old days of fixed period conciliation; and would the system get clogged up with satellite litigation?

So on 5 April, I was quite nervous - yes, we were well prepared but would it actually work?

Well, I'm pleased to say early conciliation does work. Our system has coped well with demand, most employers and employees do want to talk to us, everybody recognises that this isn't a return to having to conciliate in a fixed period, and so far we haven't seen an increase in satellite litigation. However the introduction of fees to bring an Employment Tribunal (ET) claim does mean we are working in a very different landscape than when we started to prepare.

Pre Claim Conciliation introduced by Acas in 2009 showed that proactive intervention before an ET claim was lodged was a useful way of helping parties to resolve claims, but there were two flaws:

  • Not everyone knew about it
  • Some people ran out of time to lodge before the issue could be resolved through Acas conciliation services

Early conciliation was designed to tackle both these flaws. It is now mandatory to notify Acas before an ET claim can be lodged. This then triggers an automatic pause of up to a calendar month in the ET time limit for lodging a claim.

It's not necessarily about resolving more cases, but about resolving them earlier; and it's not just about reaching formal Acas settlements (COT3s). Acas helps parties to resolve informally too, for example when an employer just pays the money owed, or the claimant decides that the case isn't strong enough to pursue are just as important.

What have we learnt in the last six months?

1. The numbers. Early conciliation notifications are in line with our forecasts, which were based on numbers of conciliations handled by Acas pre fees, including PCC.

  • Over 90% of people notify us online
  • Cases come in steadily, at around 1600 per week
  • Conciliation is voluntary but most employees and employers are willing to talk to us (around 10% of each group refuse)

2. Stop the clock. We issue a certificate to confirm that the automatic pause in the limitation period has ended - but this doesn't mean that Acas can't conciliate beyond this point. Significant numbers settle later. We have found that both employers and employees call us on receipt of the certificate to continue discussions, and as early conciliation is about resolving cases before an ET1 is lodged, this is good news.

3. Getting the name of the employer right is important. It can be difficult for claimants to correctly identify the legal identity of an employer, for instance if they work for an outsourced company. In some cases, claimants have issued several notifications, to cover various options or when they realise that they got it wrong.

4. It will take time before we see the full picture. We are only now beginning to get a picture of how many early conciliation notifications go on to lodge an ET claim (24% of cases notified in April - June), and how many of these cases are resolved before reaching an ET hearing. We will know more about this as more cases go through the system and as we survey those involved to find out why they decided to carry on or they decided not to go further.

The first six months is just the start of the story.

More blogs on the first six months of Early Conciliation:

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