Early conciliation is making employment law less confrontational

‘You’re fired!’ – words perhaps now most associated with Lord Sugar on the BBC One programme The Apprentice.

Of course in the real (i.e. non-reality-TV-show) world if said by an employer in haste and without due process, the place they might end up is in the Employment Tribunal in a claim for unfair dismissal.

Employment tribunal cases can sometimes be high profile – one recently involved Lord Sugar himself, although it wasn’t because he’d said those infamous words. The claimant, one of The Apprentice series winners, had resigned and claimed unfair constructive dismissal (which can be claimed on the basis of an employer’s fundamental breach of an employment contract, leaving the employee with no choice but to resign). Other claims can be made for various forms of discrimination, victimisation for whistleblowing, unlawful deductions of wages, to name just a few.

So what’s changed? From 6 April 2014, The Advisory, Conciliation and Arbitration Service (ACAS) began a process called Early Conciliation, the aim of which is to resolve a dispute before it gets to an employment tribunal, thus avoiding what can sometimes be lengthy and costly proceedings.

Although taking part in conciliation remains voluntary, a claimant has to notify ACAS of their intention to lodge an Employment Tribunal Claim. The ACAS conciliation service is now routinely offered to everyone much earlier than previously, in order to find a solution. There is an automatic ‘stop-the-clock’ of the tribunal limitation period while conciliation takes place.

Alan Sugar
Lord Sugar: not an ACAS conciliator

There are early indicators of success. The quality of the conciliators has been good and so far they seem to coping with the volume of cases. Engagement has been high, as just approximately 10 per cent of respondents have refused to deal with the ACAS conciliator. Approximately 25 per cent of claimants go on to take their case to tribunal.

While Early Conciliation has been broadly positive for both sides, these reforms have to be considered in the context of a range of changes brought about by the Enterprise and Regulatory Reform Act of 2013, specifically the introduction of fees to take a claim to tribunal.

Historically, claims were relatively straightforward and inexpensive to bring, although the last Coalition government thought that the number of cases reaching the Tribunal stage was too high, and placed too onerous a burden on employers. Since the new fees regime was introduced there has been a reduction in claims of approximately 75 per cent to around 12,500 per quarter.

While there has been some anecdotal evidence that the standard of claims has improved, the problem of vexatious claimants has not gone away. And any suggestion by reduced figures that workplace disputes themselves are dropping does not sit well with the evidence of Citizens Advice (the national umbrella body which represents local Citizens Advice), whose traffic to the workplace rights pages of their Adviceguide website have increased by 19 per cent.

It’s likely, therefore, that more people are having problems at work, but giving up before taking their case further when they find out about the fees.

So what lies ahead on the legal horizon? The Conservatives, free from any constraints placed on them by any pesky coalition partner, are likely to pursue their pro-business agenda which ensures regulation is ‘light touch’, with greater flexibility for the employer. However, the drastic reduction in employment tribunal claims cannot be ignored. Bates Wells Braithwaite partner Paul Jennings says: “The recent suite of reforms has significantly changed the employment law landscape and the reduction of claims since the fee regime was introduced has been severe. Perhaps the most notable is the 91 per cent reduction in sex discrimination claims, which I strongly suspect means the new system will have to be reviewed.”

But will these changes have any impact on future employment lawyers? The picture is a mixed one. Jennings says: “The work of employment law solicitors has changed, although the volume of work available has not declined in the same way it has for barristers. For solicitors, employment law will always remain a viable option because there are so many other areas of work which have remained relatively unaffected by employment law reforms such as pensions, intellectual property law issues, bonus disputes and TUPE, to name just a few.”

It seems clear, therefore, that there has been a significant amount of change in this area over the past few years, and it would perhaps be unwise not to expect more in the near future. Although the precise affect they will have on future employment lawyers, ultimately remains to be seen.

Tom Clark works for Citizens Advice, specialising in employment law and HR. He also recently completed the GDL. This article is written in a personal capacity.