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.
• 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
• 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.
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.