From 6 April 2014, the early conciliation process with ACAS was voluntary. This then became compulsory on 6 May 2014. This means that in any employment dispute where one of the parties wishes to raise an Employment Tribunal claim, they must first instigate the ACAS early conciliation process. In doing so, ACAS will attempt to settle/conciliate the claim and prevent it from proceeding to an Employment Tribunal. If agreement is reached between the parties, this is detailed in a COT3 agreement. If the parties do not reach an agreement, ACAS will issue an early conciliation certificate which is required by the claimant in order to raise a claim in the Tribunal. This process also extends the time limit for raising a Tribunal claim.
Although ACAS have published statistics for the first six months, the period covered starts from April when early conciliation was not compulsory. Unsurprisingly, during April there were significantly fewer notifications to ACAS than for the other five months.
The figures show that in the vast majority of cases it is the employee or ex-employee ("the employee") who makes the initial contact with ACAS. In the six months documented, there were 36,162 employee notifications, and only 1,242 notifications from employers.
Of those contacted by ACAS following the process being triggered the figures show that only around 10% (whether employer or employee/ex-employee) refused conciliation. This suggests that most parties are willing to at least hear what the other party has to say. Tactically, this makes sense and irrespective of whether an employer intends to defend a claim or not it is worth hearing what the employee has to say.
The statistics published by ACAS only look at the outcomes of such notifications for the first quarter (April-June 2014). The statistics show that of the 17,162 claims notified to ACAS in that time, 3,046 (18%) resulted in a COT3 settlement. 9,918 (58%) did not progress to a Tribunal claim, and 4,198 (24%) progressed to an Employment Tribunal.
This shows that a clear majority of people who initially contacted ACAS either settled their claim or did not pursue the claim before an Employment Tribunal. On one hand it could therefore be argued that the ACAS early conciliation has been a resounding success. However, in my view there are various reasons why a claim is not progressed, the main ones being:-
1. the employee knew their claim was not worth pursuing and never intended to raise a claim if they were not able to resolve matters through ACAS;
2. the employee took the view that their claim was not worth pursuing having discussed matters with ACAS/heard what their employer/ex-employer had to say;
3. the employee considered that they had a claim that could have been pursued but decided not to pursue it for reasons other than financial reasons;
4. the employee considered that they had a claim that could have been pursued but decided not to pursue it for financial reasons including, potentially, the cost of Tribunal fees.
I strongly suspect that the true impact of the ACAS scheme is exaggerated by the statistics referred to above and that a very significant reason that claims are not being pursued is due to the Tribunal fee regime. The fees, which are £160 or £250 to lodge a claim, with a further charge of either £230 or £950 if the matter goes to a hearing are currently subject to fresh judicial review proceedings brought by Unison (following the failure of their previous challenge due to it being brought prematurely). The fresh judicial review proceedings were heard on 21 and 22 October 2014 and I understand that a decision may be out by the end of the year.
To see the early conciliation statistics click here:-
