Early conciliation to avoid tribunal claims – is it going to fly or flunk?

Early conciliation to Avoid Tribunal Claims – is it going to fly or flunk?

This has the potential to be a brilliant addition to the ACAS service in the UK. But will it really deliver what we hope? We’ll soon find out as it’s just come in as of 6th April 2014.

I am far too old not to be cynical. So many initiatives in recent years to reduce paper, legislative burden, time, cost on employers etc. are nothing but a farce. In fact, quite a few initiatives have caused employers nothing but headaches. But maybe, just maybe, this one won’t be!

But let me leave it to you to decide. Here are my thoughts on the fly/flunk equation:

Fly

  • Misinformed claims (e.g. employee doesn’t have the length of service requirement to bring the claim) should be dropped at a much earlier stage if ACAS staff are assertive with potential claimants.
  • Quick, easy, straightforward and sensible process that should help resolve easy issues fast.
  • Nimble, well organised and well informed (legally) smaller employers who are able to reach quick commercial decisions on issues could benefit hugely.
  • Employers who have clearly messed up can make a quick settlement and move on without huge disruption over months (or years) to their business.

Plus…

  • Brilliant conciliators will guide wayward employees into making considered decisions, rather than emotional ones.
  • Employers who have an in house legal team may be better geared up to take advantage of this than other employers with no in house legal expertise.
  • Its free – no one really has anything to lose by giving it a go.

Flunk

  • This is effectively asking employers to fork out money without any prior knowledge of a claim being brought against them, what the claim will contain, the potential value of that claim, any real time to investigate the claim/s or any sense of whether the employee is likely to present a credible case.
  • Its asking employers to go from 0 to 100 in just 30 days and stump up cash at the end of it.
  • Large employers plus those who are not lean, nimble or legally well informed might struggle with speed of turnaround, particularly if having to co-ordinate lots of different people.
  • I wasn’t aware that ACAS has the resources to do this. Or are they recruiting like mad at present?
  • Weaker conciliators might not have the ability to guide wayward employees into making well considered decisions.
  • Risk averse conciliators will be solely focussed on getting the parties to agree a settlement without any effort put into getting an unnecessary claim dropped.

Plus…

  • Is this going to raise employees’ expectations of an early settlement without them having any need to explain, argue or turn up to a hearing. A charter for lazy ‘have a go’s’?
  • Might encourage ‘pay offs’ by employers who then inadvertently create a ‘pay off’ culture in their business.
  • What exactly can you resolve during a couple of 10 minute telephone conversations that may or may not be days apart?
  • How many employees know how to put a claim together that contains enough information to enable a fair conciliation process? And, if this is a pre-claim process, is there a danger ACAS will advise employees to put extra claims in at this early stage just in case they want to add them in to a formal claim later on?
  • Surely to take this seriously, employers are going to need to get legal advice before they enter into conciliation, so it’s not really free for employers at this stage.

Oh dear! I started off thinking this was a great idea. Now I seem to have talked myself out of it. But don’t mind me, I’m sure you can make your own minds up and no doubt time will tell!
Thoughts, questions, opinions on this blog? You know where I am and the comments box below would love to be better used.

For details about early conciliation, Jaluch will be sending out a two minute HR Blast on the topic in just a few weeks. Not already on our Blast List? Sign up here to join nearly 10,000 other readers of our fortnightly blasts.

Some useful links:

www.acas.org.uk/index.aspx?articleid=2011

www.acas.org.uk/media/pdf/c/h/Early-Conciliation-flowchart.pdf

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