The Government has recently consulted on the detail of its proposal to introduce compulsory conciliation through the Advisory Conciliation and Arbitration Service (“ACAS”) as a necessary pre requisite of bringing a claim in the Employment Tribunal. The new scheme is scheduled to come into effect in April 2014.
As part of its programme to reform Employment Tribunals and employment law, the Government announced last year that it intended to introduce compulsory conciliation through ACAS. Before being able to bring a claim in the Employment Tribunal a claimant would have to have obtained a certificate from an ACAS official confirming that attempts to reach an amicable settlement had been made but had been unsuccessful.
The detail of how this would work has now been the subject of consultation. The Government envisage that, before lodging a claim, a claimant would first file a form with ACAS setting out brief details of the dispute. An ACAS conciliation officer would then make contact very soon after receipt and investigate whether initially the claimant and then the employer are interested in investigating the possibility of a settlement. If this cannot be achieved, the ACAS officer will then issue a certificate confirming that settlement cannot be reached. There is a backstop period of one month for this process.
Although, in view of the existing strain on ACAS resources, there is some concern whether it will be able to cope with the increased workload that this new scheme will generate, it demonstrates the growing enthusiasm for finding better ways to resolve workplace disputes. The use of mediation services has increased greatly in recent years. 57% of respondents to a Conflict Management survey recently carried out by the Chartered Institute for Personnel and Development (CIPD) reported that they now used mediation in their organisations. This was split between external mediators and internal managers trained in mediation skills.
The advantages of mediation are perceived to be
- Speed: a mediator can usually be engaged very quickly
- Cost: usually being limited to one day, a mediation is much cheaper than litigation in the Employment Tribunal
- Confidentiality: it will almost always be a term of the mediation agreement that all details of what is discussed at a mediation are kept confidential and will normally not be referenced in court if the mediation is unsuccessful
- Range of solutions: whereas litigation normally has just financial compensation available as a remedy for the successful claimant, there are many more ways of reaching an amicable conclusion in a mediation.
It may not be suitable for every case, however. An essential feature of mediation is that both parties must agree to it. Even in the ACAS scheme, there is no compulsion on either party to actively engage in settlement discussion if they do not wish to. Also, in cases involving important issues of conduct or behaviour, employers may prefer to adopt a hardline approach where they wish to send a clear message to their employees as to the sort of conduct or behaviour which will not be tolerated.
The Government’s decisions following the response to consultation is expected soon. We will report further on this when an announcement is made.
How we can help
Abbiss Cadres offers experienced mediators accredited by the Centre for Dispute Resolution who can offer an alternative to the downsides of litigation at any stage of a dispute.
BIS – Early Conciliation – A consultation on proposals for implementation.
CIPD Conflict Resolution Survey
For further information or to discuss the issues raised, please contact David Widdowson on +44 (0)20 3051 5711.
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