A seismic overhaul of employment disputes resolution should be good for clients and lawyers
On 6 April 2014 a crucial part of the Government’s programme of employment dispute reform will take effect. Known as Early Conciliation, the new rules will require an employee to send a notification to ACAS before they are able to bring a case to the Employment Tribunal (ET). This will give a conciliation officer the opportunity to try to resolve the dispute without the need for tribunal proceedings. The regime presents both an opportunity and arguably, an obligation for employment lawyers.
Cynics say the process will merely involve a tick-box exercise and will have little effect. It is true that Employment Tribunal fees have already knocked out a sizeable chunk of ordinary claims (as the ET’s recently released statistics revealed).
For the more intractable claims, such as whistleblowing and discrimination, the fees have been set at such a high level, employers are likely to resist overtures from an ACAS officer, if they have not already seen the colour of the employee’s money. But actually it would be a mistake for employers not to engage seriously with the new process.
The system for resolving employment disputes is changing beyond all recognition. Taken together ET fees, the new ET rules and Early Conciliation represent a seismic shift in the landscape, the biggest we have seen for a decade.
No longer will it be sufficient for employers and their advisers to think in binary fashion (resolve within the workplace or litigate). In future, they will have to consider the full range of alternatives, from workplace mediation, commercial/judicial mediation to Early Conciliation as well as litigation itself. It need not signify weakness to be open to discussions at an early stage. As with commercial litigation, it will be seen as being eminently sensible.
The Government has invested a significant sum of money in assembling a team of ACAS conciliators, and their services will be offered completely free of charge. The quality of the new recruits will be critical. If employment lawyers are impressed, they will recommend the process to their clients. If they have a bad experience, the opposite will be true. ACAS needs to get it right from the off.
The rumour is that its funding is in place for a year only; thereafter continued funding for the Early Conciliation programme will be very much up for grabs.
So yes, arguably ACAS itself is on trial. But employment lawyers have an important role to play too. We can learn lessons from the introduction of judicial mediation some years ago. It took time before the judges became comfortable with their new role. In the meantime many lawyers were not supportive of the process and advised their clients to steer clear of it. The result was a slow start until eventually judicial mediation got a better press.
Lawyers have the opportunity, and maybe even the obligation, to help this new, and undoubtedly cheaper method of resolving employment disputes, to become an established part of the employment law landscape.
Starting next month, lawyers acting for employers and employees need to focus upon how best to engage with ACAS officers, both for the benefit of our respective clients and the system as a whole.
Richard Fox, head of employment, Kingsley Napley. Fox is also chairman of the Employment Lawyers Association.