Early Conciliation: first year statistics and recent cases

Posted by Mike Wilson on
ACAS has published its first year's figures on the use of Early Conciliation, whilst some EAT rulings show the potentially harsh results if a party fails to comply.

The four-step, mandatory ACAS Early Conciliation scheme was introduced in April/May 2014. The purpose of the scheme is to promote the resolution of disputes and to save the stress and cost of Employment Tribunal proceedings. On 7 July 2015, ACAS published its report on the first year of conciliation and its findings indicate that Early Conciliation has clearly met its objectives. The report shows “high levels of satisfaction from both employers and individuals who have used the service”.

Under Early Conciliation, a potential claimant cannot submit their Employment Tribunal claim without the Early Conciliation certificate, unless limited exceptions apply. Time limits to bring proceedings are extended to allow for conciliation under the scheme.

Some of the key findings of the report are as follows:

  • ACAS dealt with over 83,000 Early Conciliation cases between April 2014 and March 2015
  • Statistics for the period between April and December 2014 show that 63% did not proceed to an Employment Tribunal claim, 15% resulted in a form of settlement and 22% progressed to a claim 
  • Of the 22% that progressed to a claim, more than half of those were subsequently resolved by ACAS 
  • 8 out of 10 service users who took part in Early Conciliation were satisfied with the service

A particularly interesting finding was the fact that considerable time is saved by claimants and employers engaging in Early Conciliation when compared to going to the Employment Tribunal. Claimants spend 6 hours on their dispute on average compared to 6 days spent on disputes during Employment Tribunal proceedings. For employers, the average amount of time spent on a dispute was 5 hours compared to 5 days for Employment Tribunal cases.

Recovery of settlement sums agreed during Early Conciliation was higher too. 96% of claimants who had agreed a financial sum as part of their settlement confirmed that it had been paid. This is a much higher recovery rate than at the Employment Tribunal where 63% of claimants said they had received their payment.

For those claimants and representatives who declined Early Conciliation this was due to their issue being resolved or because they felt that conciliation would not resolve their issue. Interestingly over half of employers and their representatives who declined Early Conciliation said it was because they felt they had no case to answer.

It is clear that Employment Tribunals are taking a strict approach to the requirement to comply with the Early Conciliation scheme as borne out by two recent interesting decisions of the EAT.

In Cranwell v Cullen the EAT upheld the Employment Tribunal decision to reject Ms Cranwell’s claim where she had not contacted ACAS under the Early Conciliation scheme. The basis of the potential complaint was sexual harassment. There were serious allegations including a claim that she had been physically assaulted and in fact there was a restraining order against the potential respondent. Ms Cranwell did not commence Early Conciliation. She mistakenly thought that one of the statutory exemptions applied and that she could not conciliate with her former employer taking into account the treatment she had experienced. The Employment Tribunal said that it could not allow her claim to proceed because of the failure to engage with Early Conciliation. The EAT, whilst sympathetic to Ms Cullen, upheld that decision. In the second case, Sterling v United Learning Trust, an incorrect Early Conciliation number was entered on the ET1. Unfortunately for the claimant the ET1 form was only submitted a few days before the time limit ran out. The form was rejected because of the incorrect Early Conciliation number and there was no time to re submit it within the limitation period. The Employment Tribunal held that it was the claimant’s responsibility to ensure that the information was correct before the claim was presented. The EAT upheld that decision.

The ACAS figures and these strict rulings come against the background of the Government's long-awaited review of Employment Tribunal fees, published on 11 June. Whilst many groups welcome the review, there is no reference to consulting with key stakeholders and its terms of reference are essentially to consider whether ET fees have achieved their objective (of reducing cost to the taxpayer and encouraging alternative dispute resolution). Whether fees are preventing access to justice (which many groups believe is demonstrated by the dramatic drop in ET claims since 2013) is mentioned almost in passing. The UNISON challenge to ET fees was also due to be heard in the Court of Appeal in June and we will continue to keep you updated.

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Mike specialises in all aspects of employment law, including restrictive covenants, commercial agents regulations and disqualification of directors.

Mike Wilson
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