Destined to reduce Employment Tribunal claims and the management time involved, pre-claims conciliation will promise an opportunity to resolve matters without a costly Employment Tribunal hearing.
Theoretically a similar process exists already but it is often not possible to persuade claimants to use it. Too often claimants are mesmerised by the possibility of 5 figure awards or by having their day in court where they think they will be able to publically embarrass their erstwhile employer.
The basic idea
ACAS will initiate the process with the claimant and there will be a one month “pause” to allow conciliation to take place. If both parties opt-out the claim can proceed but otherwise there is a one month pause before the claim can proceed.
Why does it not work now?
In our view many employers do not work hard enough to reach a conclusion prior to a hearing. Legal representatives often leave matters to the last minute and are not necessarily advantaged by an early resolution. Indeed a hearing provides the opportunity for more fees (with apologies to our colleagues in that profession), as one leading barrister admitted at a seminar.
In part employers are tempted to engage in hard bargaining (“I’m not giving him a penny”)which may, or may not, result in last minute settlements.
Claimants too can play hard-ball. In our experience expectations can be set at three or four times a realistic settlement and both parties tend to overlook the fact that any state benefits the claimant receives in a Tribunal Award have to be paid back. If there is a settlement the claimant gets the whole sum.
So will it work going forward?
Clearly this remains to be seen. What it should provide is for ACAS to add a hefty dose of reality, potentially to both parties. At present it is far to easy to ignore or by-pass an ACAS conciliation. Whether reality can be added may depend on the conciliator and, indeed, on the guidelines to which they work.
And if it doesn’t work?
Judicial mediation may be another alternative that has been around for five or six years. It has proved quite successful where Tribunals have considered a case to be suitable (usually at a pre-hearing review). Indeed if the other party’s case is weak, or listed for several days it is highly advisable to press for a pre-hearing review. This in turn may give you the opportunity to ask for judicial mediation.