The introduction of early conciliation is designed to increase efficiency in the Tribunal system by imposing a duty on the parties to attempt to settle any employment dispute before a claim is issued. The new system will be available for the parties to use from 6th April 2014 and will become mandatory for all claims from 6th May 2014.
The process will require a prospective claimant to submit an early conciliation form to ACAS before they will be able to issue a claim in the tribunal. ACAS will then contact both parties to try and broker a settlement. If they cannot secure settlement, they will issue a certificate which will enable a prospective claimant to issue a claim in the tribunal. If settlement is reached, the terms will be recorded in either a COT3 agreement or settlement agreement.
Claimants do not have to engage in the conciliation process and, as long as they have submitted an early conciliation form, can simply opt out. This seems to somewhat undermine the aim of the system however which is to reduce the number of claims in the tribunal.
How effective early conciliation will prove to be is difficult to assess. On the one hand, it offers both parties the opportunity to settle any disputes at an early stage before costs are incurred on both sides. It may also help claimants focus their minds on the merit and value of any potential claim with a view to weeding out any unmeritorious claims before they reach the tribunal although this is likely to depend on the extent of any conciliators involvement, particularly if the claimant is unrepresented. On the other hand however, with the introduction of tribunal fees last summer employers may be reluctant to consider settlement and may want to wait and see if prospective claimants are able and willing to pay the fees.
In our experience, tribunal fees have already had a significant impact on the number of claims issued in the tribunal. According to recent statistics issued by the Ministry of Justice the number of claims issued in the tribunal was down 79% for the period October 2013 – December 2013 when compared with the same period in 2012. These statistics are likely to lend weight to any further challenge to the tribunal fee system in the wake of Unison’s unsuccessful judicial review application earlier this year.
Ultimately, conciliation needs to be a voluntary process to have any hope of succeeding. In my experience if the parties are not genuinely engaged in the process, settlement will prove almost impossible to achieve. In my opinion tribunal fees are likely to present a significant stumbling block to resolving many claims pre-issue and, unless an employer is faced with a claim it is going to find difficult to defend, employers are likely to hold out to see if a prospective claimant is prepared to “put their money where their mouth is” before considering settlement.