The idea of ACAS’s services being available to both parties from the outset of a dispute, even before a claim has been lodged, is not new and was previously handled by the ACAS Pre-Claim Conciliation (“PCC”) Service. This previous process was voluntary in nature and there was concern that, particularly among claimants, there was a lack of awareness that the PCC Service existed.
The EC service, which replaces the old PCC Service, is compulsory so that an employee must contact ACAS and obtain an EC certificate number (whether or not they chose to take part in the full EC process) before they can lodge a claim with the employment tribunal. It was hoped that by encouraging a higher proportion of parties conciliating at the early stages of a conflict, more claims would be resolved, or would resolve early, saving parties from high levels of legal expenses and wasted man hours.
ACAS has now released its first quarter findings on the impact of the EC scheme. Their report tells us that a total of 17,145 requests for Early Conciliation were received in the period between 6 April to 30 June 2014, with 3,833 received in April (when the process was still voluntary), 6,544 in May and 6,768 in June. This equates to about 1,000 requests per week in the voluntary period, rising to about 1,600 requests per week after the scheme became mandatory. In 7% of cases the employees rejected the offer of conciliation, and in 9% of cases employers rejected taking part in early conciliation. The charts below are based on ACAS’s results.
Of the cases that did proceed to early conciliation, 11,355 have finished the EC process (about 66%) while the rest are still within their respective limitation periods to bring a claim and so potentially ongoing. Of those cases which did conclude, 16.5% ended in a COT3 agreement, effectively bringing the dispute to a settlement. However, this figure may be skewed by the requests for EC made in April, when the process was still voluntary, where parties were presumably keen to settle anyway.
Is 16.5% a good level of settlement reached? ACAS’s update provides no clues about their views of this figure. However, looking back at the ACAS EC proposal document from 2012 (“Evaluation of ACAS’ Pre-Claim Conciliation Service 2012”), the average number of cases settled by ACAS’s PCC Service was estimated to be 15%. This suggests that perhaps the EC process is not making a big difference from the PCC Service and that perhaps those parties who are settling early are those that would have done so anyway.
We will have to wait to see what picture develops in time as more data is gathered; however, employers are reminded of the need to follow fair procedures and to act consistently between staff when making decisions to avoid disputes and possible claims.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.