What is the role of mediation in the new early conciliation arrangements?

Mediation

Clarion’s John Robinson looks at how the introduction of Acas early conciliation may affect the employment tribunal process.

On 6 April 2014, Acas early conciliation was introduced to the employment tribunal system. For the first month it will be voluntary, but it will become compulsory after 6 May.

The fundamental point is that prospective claimants must approach Acas before bringing a claim in the employment tribunal. In fact, to progress in the tribunal system they will have to be armed with a certificate from Acas to verify that they have indeed been through the early conciliation procedure.

Although Acas will be at the heart of the new system, actually engaging in conciliation will still not be compulsory. It is merely the act of making contact that is required; even just to say that you have no desire to engage in conciliation at all. The same will apply to employers. As well as considering conciliation, employers might want to consider alternative or complementary approaches such as mediation.

Types of claims

Acas early conciliation is compulsory for the vast majority of claims including the most common ones such as unfair dismissal, discrimination, unlawful deduction from wages, a claim for a redundancy payment and whistleblowing.

There are some exceptions for less common claims such as failure to provide employee liability information on a TUPE transfer, and claims regarding payments out of the National Insurance Fund in respect of insolvent employers.

Where group actions are concerned, it will merely be a requirement for a member of the group to have been through the early conciliation process as opposed to all individual prospective claimants.

Practical steps

From May 2014, prospective claimants must call or send information to Acas on an EC Form, which only requires the name, address and contact details of the prospective claimant and respondent.

An early conciliation support officer will then make contact with the prospective claimant to gather the most basic details about the action, which are passed on to a conciliation officer. If Acas fails to reach either party or if either party is unwilling to conciliate, Acas will issue a certificate and the claim can proceed to the tribunal.

If both parties want to conciliate, the conciliation officer must try to promote a settlement within one month. If, at the end of that time, the parties are close to reaching a settlement, the period can be extended by another two weeks, as long as the parties and the conciliation officer agree to the extension.

If a settlement is not reached, either because the conciliation officer considers that settlement is not possible, or because the period expires, the conciliation officer must issue the certificate.

The early conciliation process affects time limits for bringing claims. The time limit is still three months from the date of dismissal or the act complained of, but the clock is stopped from the day the claimant contacts Acas and restarts on the day the certificate is received. In addition, the time limit will be extended by up to a month if the time limit would expire during the time from the prospective claimant contacting Acas to one month after receiving the certificate.

Conciliation versus mediation

The Government remains keen to encourage mediation as a means to resolving disputes.  This can be done informally in the workplace by someone internally or an external consultant who has received formal mediation training. There are pros and cons to this including reducing cost, sickness absence and stress, but no guarantee of a resolution and difficulties encouraging participation.

Formal judicial mediation is also becoming more common. If both parties in tribunal proceedings agree and the regional employment judge considers that the case is suitable for mediation, judicial mediation will take place. This is usually a day’s mediation before the hearing – chaired by a specially trained tribunal judge – to see if the parties are able to reach a settlement. Negotiations are geared towards reaching an agreed settlement figure as opposed to dealing with the merits and evidence of the claim. Success rates vary, as does the ability of the judge, but they are much improved and this should be viewed as a viable alternative in some cases.

Conciliation and mediation can be done together. For example, if a judicial mediation is scheduled but tribunal proceedings can be settled via Acas conciliation before the date for the judicial mediation, there would be no need for mediation. By the same token, if an agreement cannot be reached during the judicial mediation, the fact that the parties are often much closer to settlement than they were at the beginning of the mediation increases the chance of settlement via Acas conciliation.

While the Acas conciliation service remains free to users, judicial mediation for claims issued after 29 July 2013 attracts a £600 fee. It remains to be seen whether this price tag will leave claimants and respondents to favour conciliation, a decision that will be influenced by the expected costs and outcome of the tribunal proceedings.

Judicial mediation will be more appropriate for cases with lengthy hearings and significant costs. Paying £600 to potentially avoid the need for a multi-day hearing may be considered good value. However, it will only work if both parties are willing to compromise and have an open mind. If the parties are too far apart in their valuation of the claim or they are entrenched in their positions, judicial mediation probably won’t work.

Effect in practice

For employers, the new conciliation rules will mean that Acas will let them know that a tribunal claim might be brought against them, rather than receiving the claim itself first, providing some indication of the issues in dispute.

Early conciliation will be useful in cases where the parties want to avoid litigation, either because they know their case is weak or they simply want to avoid the costs and time, not to mention the stress, associated with resolution before a tribunal. Where the merits are more finely balanced, employers may well decide not to engage in conciliation and see whether the employee is in fact willing to pay the tribunal fee and have a go.

John Robinson

About John Robinson

John Robinson is a partner at Clarion.
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