Tribunal Facts and Figures with ACAS Conciliation

Background

ACAS, the Advisory, Conciliation and Arbitration Service, has a longstanding statutory duty to promote the resolution of claims to the Employment Tribunal.

ACAS has changed significantly since 2013, firstly with the introduction of the new Tribunal fees and then with Early Conciliation. Early Conciliation is mandatory for employees intending to lodge an Employment Tribunal claim.

All claimants are now required to contact ACAS in the first instance with a view to resolving the dispute through Early Conciliation before a claim can be submitted to the Employment Tribunal. This gives ACAS the opportunity to talk to claimants about the benefits of conciliation.

If the case is not resolved through Early Conciliation, ACAS conciliation will again be offered once the ET1 claim form has been issued.

 
Profiles of parties

A recent survey following interviews with claimants and employees over a 4 month period revealed that:

• 79% of claimants worked full time for the employer they made a claim against, having worked for their employer for at least one year or more
• 19% were a member of a Trade Union
• 57% were male and tended to be aged over 35

A smaller proportion of claimants were identified as white and a higher proportion of older claimants worked within the private sector.

62% of the claimants interviewed had been represented by solicitors, barristers or another kind of lawyer and 14% had been represented by a friend, neighbour or family member.  This shows an increase in the use of more formal representatives, e.g. lawyers etc. as well as Trade Union and working representatives.

66% of claimants were found to have a more positive perception of the conciliator and the post ET1 conciliation process as a whole, compared to those who had not previously engaged in Early Conciliation.

Of the employers interviewed:

• 83% of employers operated within the private sector
• 37% operated in large organisations (250 employees or more)
• 67% had an internal HR department
• 36% had an internal legal department
• 28% were members of an employer’s or trade association.

The profile of employers at post ET1 conciliation stage differs in relation to some characteristics of employers at the Early Conciliation stage.

Employers at the post ET1 conciliation stage are more likely to be from the private sector and the large organisations.  They are more likely to have an internal legal department but less likely to have active Trade Unions or staff associations in their workplace.

ACAS management information indicates that representatives were used by 84% of all employers.

This is a large increase from the Early Conciliation stage where only 29% of employers used representatives.  Among those employer representatives interviewed, the vast majority were solicitors, barristers or another kind of lawyer (89%).  This was an increase of 56% from the Early Conciliation stage.

46% of employers reported that Early Conciliation had previously taken place in their case prior to the submission of the Employment Tribunal claim.

 
ACAS involvement following the Employment Tribunal application

For claimants, 54% reported that the main reason for not taking part was that the employer would not be willing to negotiate and 18% thought that the employer would not be willing to engage.

For employers, 26% thought there was no case to answer and 24% reported that they were not willing to negotiate.

 
Employment Tribunal Outcomes

Both claimants and employers agreed it was an important step to involve ACAS in disputes – it had brought the two sides together quicker and had speeded up the settlement process.

However, 25% of claimants had withdrawn their claims fearing that they would not win.

• 20% of claimants had withdrawn because of the tribunal hearing fees
• 35% of claimants had applied for fee remission – this was higher in low income households
• 80% reported that they were successful
• 40% would still have submitted the application
• 13% would have pursued the case by some other means
• 37% would have dropped the claim altogether
• 17% of claimants judged that ACAS had been a factor in helping them reach the conclusion to withdraw

When looking at the service as a whole with claimants, employers and their representatives, overall satisfaction with case outcomes stands at 69%.

 
Consequences of conciliation and the future use of ACAS

23% of employers reported that ACAS had provided them with information which would help them to avoid another case in the future and a further quarter of employers reported that they had implemented new policies, procedures or practices as a result of guidance from their ACAS conciliator.

Anticipated future use of ACAS conciliation was high – 87% of claimants and 92% of employers said they would use the ACAS conciliation service in the future if similar circumstances happened again.

On line services were available to help with conciliation services.

 
Profile of Parties

Employment characteristics of claimants:

• 20% Associate Professional and Technical Operations occupations
• 15% Elementary occupations
• 14% Manager, Director or Senior Official positions

• 79% of claimants worked full time
• 15% of claimants worked part time

• 79% of claimants had worked for their employer for at least one year before contacting ACAS about their workplace problems
• 22% of claimants had worked for their employer for more than 10 years
• 20% of claimants had done so for five to ten years

• 76% of claimants worked in the private sector
• 14% of claimants worked in the public sector

 
Profile of claimant representatives

• 62% of claimant representatives were solicitors, barristers or some other kind of lawyer
• 14% were friends, neighbours, spouses or partners
• 10% were Trade Union or worker representatives at the claimant’s workplace.

 
Claimant Ethnicity

• 51% of claimants were Christian
• 7% of claimants were Muslim
• 32% of claimants had no religion
• 89% of claimants gave English as their first language

 
Personal characteristics of claimants

• 57% of claimants were male
• 93% of claimants were heterosexual
• 2% of claimants were gay or lesbian
• 4% of claimants did not want to give an answer
• 37% of claimants were 45 to 54 years old
• 4% of claimants were under 25 or over 65 years old
• 71% of claimants described their ethnic group as White
• 12% of claimants identified as Asian
• 11% of claimants identified as Black
• 3% of claimants identified as mixed ethnic background

 
Type of representative

The Employer representative tended to be experienced – 23% representing both employer and claimant.

• 62% of employers were from a small workplace (50 employees or less)
• 14% from medium sized workplace (50-249 employees)
• 14% from large workplaces (250 or more employees)

Employers were from a number of different industries

• 13% from “human health and social work”
• 13% from “wholesale and retail trade”
• 13% from “repair of motor vehicle and motorcycles”
• 13% from “administrative and support services activities”

Employers from the banking, finance and insurance industries were over represented and under represented in the public administration, education and health sectors.

 
Claimant reasons for participating in post ET1 conciliation

Claimants hoped for a swift resolution to their dispute and others were participating in conciliation as a means of reaching a tribunal hearing.

 
Claimant reasons for not participating in post ET1 conciliation

• 54% of claimants said employers were not willing to negotiate
• 18% of claimants said employers were not willing to engage

 
Employer uptake of post ET1 conciliation

Six in ten employers reported going on to participate in conciliation. Organisations which had an internal HR or personnel department were much less likely to report taking part in post ET1 conciliation.

 

Employer reasons for participating in post ET1 conciliation 

Some employers thought (incorrectly) they were legally bound to do so.  They did not expect claimants to go through to a tribunal hearing and expected claims to be withdrawn or settlements accepted.

For both claimants and employers, there was a sense of “going through the motions” when participating in post ET1 conciliation. Both hoped for a resolution although they did not always anticipate one through conciliation.

Worth noting, most “willing to engage” employers reached a settlement before post ET1 conciliation.  Other employers felt a sense of futility but took part only to “reach a resolution”.

 
Employers reasons for not participating in post ET1 conciliation

• 26% felt they did not have a case to answer
• 24% were not willing to negotiate
• 17% felt that conciliation would not resolve the issue

 
Expectations for post ET1 conciliation

Some claimants were unsure of what to expect from this process because it was their first experience of using conciliation.

Employers expected ACAS to be impartial and to act fairly and neutrally and they did not expect conciliation to result in a resolution of the dispute, some even said it was a pointless exercise.  (Legal advice is not a function of ACAS – a misconception of one employer).

Overall satisfaction with the service received from ACAS

Among Claimants

• 74% reported they were satisfied with the service received from ACAS
• 49% extremely satisfied or very satisfied

However, one group felt that ACAS was “feeble” and lacked “muscle” when engaging the employers in the conciliation process.

Some claimants wanted proof that ACAS was completely impartial – they were suspicious of solicitors who were not seen to be neutral.  Claimants expressed a need for an organisation that could provide such advice.

Among employers

Overall, employers were satisfied with the service provided by ACAS.

Some who were dissatisfied thought ACAS was not neutral, they had received poor service, had poor communication or had received no contact at all.

How will UK Employment Law be affected by Brexit?

It is fair to say that, despite recent headlines to the contrary, in reality there will be no immediate changes to UK employment law as, until a formal Brexit actually takes place, the UK will still remain subject to EU law and EU decisions.

According to the terms of exit from the EU, the UK will have a period of up to two years within which to negotiate the terms of its withdrawal and it is not yet known when that period of two years will even begin.

Moreover, although much UK employment law is derived from EU law, EU legislation generally only serves as a foundation and the UK usually augments any regulations to go beyond what is required, e.g. in maternity leave and paid holiday provisions.

 

In fact, a great deal of UK employment law has no basis in EU Law, e.g. the National Living Wage and Minimum Wage are the result of laws made in the UK in isolation.  Also, the recent changes giving the right to share parental leave was the result of UK government legislation supported by both the coalition and opposition.

It will be for Parliament to decide whether to retain, amend or repeal current domestic legislation post Brexit.

Of course, many employment rights derived from EU law have already been written into the contracts of UK employees. Employers will therefore face difficulties in making changes to existing contracts, even if EU regulations are no longer applicable. In addition, any European Court of Justice decisions will continue to apply in the UK until the Government or the UK courts determine otherwise.

If a future Government were to consider any changes to employment regulation, areas currently governed by EU law such as harmonisation of contracts after a transfer of undertakings (governed by the TUPE regulations), the calculation of holiday pay, agency workers’ rights and the introduction of a cap on compensation in discrimination claims could be open to alteration. These areas have caused major headaches for UK employers and are unlikely to be mourned.

However, it is feasible that the UK would still be required to apply future EU legislation to domestic laws as a condition of a new trade deal between the UK and EU.

In addition, the UK may still have to accept free movement of labour to some extent, similar to the position in Norway and Switzerland.

Employers who have EU national workers can give some reassurance that there will be no immediate change in their right to live and work in the UK. Workers from other EU countries continue to enjoy the same rights as they had before the referendum.

Importantly, it remains unlawful to discriminate against workers from other EU member states (or discriminate in favour of them). All workers must still provide identity checks and employers will face civil and criminal penalties if they employ workers who do not have the right to work in the UK.

Following the referendum result, there has been an increase in race related crimes and workplaces can be vulnerable to this type of behaviour.

Bullying and harassment because of nationality or national origin are unlawful discrimination and employers should ensure all their workers are aware that such behaviour will not be tolerated.

There is a great deal of uncertainty both about the immediate economic consequences of the vote to leave the EU and about how the UK’s future relationship with Europe will work but Brexit does, however, open up the possibility of some simplification of the more complex regulations which have the biggest impact on business.

Explaw research – Top five worries for employers

Explaw recently conducted research amongst its UK wide client base of SME clients to identify the top 5 worries for employers.

Said Hywel Loveluck, CEO of Explaw, a consulting firm that helps small and medium sized businesses with its expertise in HR & Employment Law and Health & Safety compliance, “The research exercise was in itself an interesting process for our team of consultants and the summary results make worthwhile reading. It is important that owner managed businesses are aware of potential risks and are able to plan accordingly”.

Attached is a summary ExplawTop5EmployersWorries

Explaw looks to add to its team of professional consultants

Explaw is looking to add to its team of professionally qualified HR consultants, Barristers, Mediators and Lawyers.

Explaw is a consulting firm that helps small and medium sized businesses with its expertise in:

  • HR and employment law
  • Health and safety compliance
  • Business solutions

Servicing a UK wide client base, we are interested in talking to experienced consultants and practitioners in the field of employment law, human resource management and health and safety. You must be able to demonstrate experience of delivering client solutions and be passionate about adding value to our clients’ businesses.

For further information please email your initial enquiry to  info@explaw.co.uk.

The top 10 most influential recruitment trends that may surprise you

1.The shift in power to the candidate means current approaches will stop working – 83 percent of recruiters report that the power has shifted away from where it has been for years, the employer and toward the candidate. In a candidate-driven marketplace, “active-recruiting approaches” simply stop working. Now that top candidates are in the driver’s seat and have multiple options, recruiters must dramatically increase hiring speed, offer a great candidate experience and shift to an emphasis away from assessment and towards excellence in “selling candidates.” Once candidates realize that the power has shifted to them, many will develop an arrogant “why-should-I-work-for-you?” attitude, which you must adjust to if you expect to land the best.

2.The mobile platform begins to dominate every aspect of recruiting – most firms have finally recognised that individuals should be able to apply for a job directly from their mobile phones. However, the best firms are now realising that the mobile platform should dominate every area of recruiting because of its versatility and its incredibly high response rate (compared to other communications platforms). The mobile platform should be the primary mechanism for communicating with prospects/candidates, for brand messages, for viewing recruitment and job description videos, and to push relevant open jobs to applicant communities. Eventually it will be used by most to offer live Hangouts/Meetups, for candidate skill assessment, for most candidate interviews, to find referrals and finally to allow individuals to accept job offers directly on their phone. Recruiters and hiring managers must be able to post jobs and videos, review resumes, schedule interviews and perform other administrative tasks from their mobile phone. Employees must also be able to carry out all referral administration and apply for internal openings on their phone.

3.Shifting to compelling offers becomes essential – during the down economy, almost any offer was accepted. However, in today’s marketplace where top candidates get multiple offers, the offer generation process must be radically updated. That means that sign-on bonuses, exploding offers and identifying and meeting an individual candidate’s job acceptance criteria will become essential once again. In addition, hiring managers, compensation specialists and recruiters will need to update their skills and approaches for creating compelling offers and to sell prospects and to in-demand candidates. Relearning how to successfully combat counteroffers from a candidate’s current manager will also become essential.

4.Perhaps the biggest surprise will be the shortage of top recruiters – as recruiting volume and difficulty both ramp up, firms will begin to realise that there is a significant shortage of talented and current recruiters. Expect a bidding war over the few available top corporate recruiters. A lack of quality, leading-edge recruiter training will unfortunately also make the experienced recruiter shortage even worse. Continue reading “The top 10 most influential recruitment trends that may surprise you”