There is no doubt that Early Conciliation has largely been a success during its relatively short existence.
Figures released by ACAS show that over 83,000 cases were dealt with via Early Conciliation between April 2014 to March 2015 and with 8 in 10 people expressing satisfaction with the manner in which ACAS have handled their issues, they appear to have got their stance to customer relations right also.
However, Early Conciliation is experiencing a period of turbulence, where it is now finding its legitimacy threatened by its own creators.
It was recently revealed to a House of Lords committee by members of the Law Centres Network that the current system used to handle employment issues is being undermined, largely by the huge costs claimants are expected to pay prior to having their matters heard.
The idea behind Early Conciliation and the very essence of its introduction was not only to free up more time across the tribunal network for more serious issues, it was to save working people from the cost of going to tribunal.
Historically, this often presented the only solution to the issues people were faced with. It was either, bear the cost of justice or walk away from a job that many years may have been invested in, with nothing.
Early Conciliation was dreamt up as the start of a solution to this painful problem.
It was to present people with an opportunity to conciliate and negotiate with their employers on a levelled playing field, whilst still retaining the right to take tribunal action if dissatisfied with the result achieved.
Unfortunately, the decision to introduce compulsory Early Conciliation at around the same time as increased tribunal costs, has come back to haunt the powers that be.
As pointed out by Douglas Johnson of the Law Centres Network, evidence has begun to show that employers are holding out from partaking in Early Conciliation, under the belief that the tribunal costs will be enough to discourage employees from taking their claims any further.
‘There is far more of a shift towards employers just saying “no, issue your claim and then we’ll talk”, he told the committee.
It has been mandatory for employees to use Early Conciliation as a mediation service prior to lodging a tribunal claim since May 2014 and it was originally thought that the forced increase in those pursuing mediation would offset the rise in tribunal fees.
This theory now appears to be little more than just that.
With the risk falling heavily upon the claimant, employers are becoming financially tempted to allow claims to go the full distance.
They are now more inclined to take a risk on claimants simply being unable to afford to file a claim or, after weighing up the cost and subsequent risk involved, deciding not to proceed.
Rachel Crasnow QC, also commented before the committee saying, ‘Because employers are facing far fewer claims because less are being brought, they tend to have a more bullish approach to conciliating those claims. [This is] partly because the budget for legal expenses is not being used up in the same way and because they feel there is less pressure to settle matters.’
With Nicola Sturgeon recently pledging to abolish increased tribunal fees in Scotland, it is certainly a topic that is drawing much attention and comment at present.
Early Conciliation may well be pivotal to the resolution of the now undoubted problem present within the employment law system in this country. It may just need to be given a chance to be successful long-term.
‘There is far more of a shift towards employers just saying “no, issue your claim and then we’ll talk”