Working Theory

by Michael Reed

Me?

I do employment law for the Free Representation Unit.

Email?

michael at workingtheory.co.uk

Elsewhere

Early Conciliation, Early Thoughts

18 January 2013

There are 29,600,000 employees in the UK.1 There are 186,300 claims to an Employment Tribunal.2

In other words, about 0.63% of employees bring tribunal claims. Or, to have one tribunal claim against you a year, on average, you need to employ 159 people.3

Yet, almost all employees ‘experience a problem at work’ of some sort. Employees and employers disagree about all sorts of things – pay, overtime, performance, bullying, etc. The point is that, in the vast majority of cases, they work these things out without going to the tribunal.

So, often, the whole business of trying to divert claims from the tribunal, starts from something of a false premise. Certainly, most employment problems should be sorted out away from the tribunal. But most of them are. It’s important to recognise that what gets to the tribunal is a tiny residue, where, because of the nature of the dispute (or the nature of the parties), things have got unusually difficult.

Having said that, it’s worth trying to keep the residue as small as possible, which is what the the government is seeking to do through Early Conciliation, implementation currently being consulted upon. Some initial thoughts:

Jurisdictional Nightmares: The Revenge

One of the key problems with the late, unlamented statutory dispute resolution procedures was that they made the tribunal’s jurisdiction (aside from claims about dismissal) contingent on following the grievance procedure. If you didn’t put in a written grievance, the tribunal had no power to consider your claim.

This, of course, led to endless and pointless (yet vital) arguments about whether a grievance had been lodged and whether it identified all the relevant claims.

I fear Early Conciliation creates a very similar problem.

s7 of the Enterprise and Regulatory Reform Bill, as currently drafted, amends the Employment Tribunals Act 1996 to allow for Early Conciliation. Before a claim can be brought in the tribunal, it requires the prospective claimant to submit prescribed information, in the prescribed manner, about that matter, to Acas.

This means a claim can be defeated because the the prescribed information about the claim has not been submitted in the prescribed manner.

The government tries to avoid this problem by minimising the prescribed information; requiring claimants to provide only their name, address & contact details and those of their employer.

This should minimise the problems, but I’m not sure it eliminates them all.

Say you are racially harassed at work. After trying, and failing, to address the issue internally, you apply for Early Conciliation. A few weeks later, you don’t get an expected promotion. Your employer is angry you’ve gone to Acas. So now you have a potential victimisation claim, which didn’t exist when you gave your information to Acas. Presumably, your first form could not have been ‘about that matter’. So, it seems, you have to put in a second Early Conciliation form to ensure the tribunal has jurisdiction, even though it will be identical to your first one. About a month later, after conciliation fails, you go to the tribunal. Your employer dismisses you in a fit of pique. If you want to bring a claim about that, you will have to submit a third, again identical, form to Acas.

And this assumes that everyone knows about the claims as they happen. What happens if someone has two potential claims, but only knew about one of them when they first come to Acas? Again, I think, they should put in another form when they find out about the second claim.

All of this gets even more complicated if we consider that potential respondents can also contract ACAS and request Early Conciliation. What happens if a respondent contacts Acas in the hope of resolving one issue, but the claimant wants to bring a claim about something else? I don’t think it’s clear.

Some people are going to get all of this this wrong.

Even when they don’t, what is everyone to do with all these indistinguishable forms? And what useful purpose do they serve? What about time-limits?

What, exactly, is Acas going to do?

The consultation is almost silent on this. It discusses in detail the process of starting Early Conciliation, but then just says:

3.15 Where both parties agree to participate in EC, the conciliator will have up to one calendar month from the date of receipt of the EC form to facilitate a settlement between the parties. Where, at any point during that period, the conciliator believes that there is no reasonable prospect of achieving a settlement, or if discussions fail, or either party elects to withdraw from the process, the conciliator will end the process and issue a certificate.

Precisely what Acas will do, and what resources it has to do it with, is terribly important. But there is no information about this in the consultation, and I haven’t found anything elsewhere. This seems odd and a bit worrying.

The fees

One of the major hurdles of successful Early Conciliation is still the introduction of tribunal fees.

When it costs £1,200 to bring an unfair dismissal many employers, at the Early Conciliation Stage, will face an irresistible temptation not to conciliate, in the hope their ex-employee doesn’t come up with the money.

Cheap shot?

The consultation paper, as part of the explanation of why claimants won’t be required to provide Acas with a summary of the dispute, says:

1.5 However, we believe that it may be difficult for certain prospective claimants, particularly those who are unrepresented, or considered more vulnerable, to understand the breadth and nature of their disputes and to accurately describe them in writing. While it might be possible to mitigate against this risk by including broad descriptors and guidance on the EC form, we consider there would remain a risk that many prospective claimants would fail to indicate all their potential claims on the EC form, simply because they were unaware that they existed, or might indicate the wrong ones.

A good point.

But, since any claim that is not conciliated will have to proceed to the tribunal, it fits oddly with the government’s position in the Consultation Response to Proposals from the Reform of Legal Aid in England and Wales, that people don’t need help there:

70. The majority of [employment] claims are pursued in the tribunal which is designed to be used by unrepresented litigants. While we recognise that clients find advice in the preparation of their case useful, we do not consider that this group of clients are generally likely to be particularly vulnerable, and we do not accept that the tribunal cannot be accessed or that justice cannot be obtained, without access to legal aid for advice.

This isn’t the fault of those working on Early Consultation for BIS, who are no doubt genuinely seeking to avoid creating unnecessary obstacles.

It’s inconsistent nonetheless though.

  1. Labour Market Statistics, December 2012, ONI

  2. Employment Tribunal and EAT statistics 2011-12, MoJ

  3. These figures are imprecise. And distorted by things like the airline multiples.

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