As many of our clients are aware, if an employee wishes to bring a claim against his or her employer, the first step they will have to take is to contact the Advisory, Conciliation and Arbitration Service (‘ACAS’) regarding early conciliation. ACAS is a government body that assists parties with employment disputes and has the authority to conclude settlements between those parties. At this stage, the employer can consider making an offer to settle. ACAS will not advise an employer as to the reasonableness of any settlement offer, nor of the likelihood of any claim being successful against it, which is why it is always advisable for an employer to seek legal advice before committing itself to a settlement.
If the Company is unwilling to make an offer or settlement cannot be achieved, then the employee could issue a claim in the employment tribunal. If a claim is brought it could take upwards of a year, or potentially longer, for the matter to reach a final hearing.
Acas has just published its 2018-2019 Annual Report and Accounts, highlighting the increased demand for the conciliation services. The Report shows that the number of early conciliation notifications received rose by over 20 per cent compared with last year. That is 133,000 requests and most of them (over 97 per cent) are made by employees. Employment tribunal claims were subsequently made in over a quarter of those requests.
The coalition government introduced the employment tribunal fees back in 2013. However these were abolished after the Supreme Court ruled that they were illegal in July 2017. Since then the demand for the early conciliation services provided by Acas has been rising.
Acas’ Annual Report also shows that the number of employment tribunal claims made after the early conciliation has grown by 40 per cent compared with last year. The number of claims has been rising since the abolition of the employment tribunal fees, and the tribunals have been struggling to cope with the high volume of caseload. The recent survey carried out by the Employment Lawyers Association revealed that correspondence and applications with tribunals are taking longer than a year, and over 77 per cent of the survey respondents saw the final hearings being listed more than a year after the issue of a claim.
In the current climate where more and more employment tribunal claims are brought in, employers are in a greater danger of being involved in litigation. Litigation is extremely time consuming, more so with the current employment tribunal delays caused by lack of adequate resources. At present, employment tribunals are very slow in listing the cases and It is an arduous task to put together your case successfully a long time after a disputed incident arises, as the evidence will disappear, the memories will fade and the witnesses will move on. In addition, cost orders in employment tribunals are relatively rare which means that even if you successfully defend the claim you will not be able to recover your costs from the claimant.
In order to avoid such time consuming, stressful and expensive litigation, it is of utmost importance to deal with workplace disputes as early as possible. It is always best to try to resolve the matter when you first identify it. Similarly, if Acas contacts you in order to try to settle a matter raised by your employee, a careful and strategic approach based on professional advice is highly recommended.
If you would like any advice or assistance with any employment matters, or if you receive an email from ACAS inviting to you to participate in early conciliation with a current or former employee, please contact one of your employment lawyers for advice.