Julie Duane, Solicitor Advocate at CG Professional.
ACAS’s Annual Report for 2018/19 confirms a surge in Early Conciliation applications following the abolition of tribunal fees.
As you will be aware anyone who wishes to pursue a claim in the Employment Tribunal must first notify ACAS via the Early Conciliation procedure. Upon receipt of that notification, ACAS will then engage with the parties to offer free impartial and voluntary advice in order to try and resolve the dispute without the need for further litigation. In ACAS’s report they have indicated that they receive approximately 2,500 Early Conciliation Notifications (ECNs) a week, several of which can lead to Employment Tribunal claims.
They advised in the year 2018 they received over 132,000 Notifications with an increase of 23,000 (21%) from last year. They have also confirmed that there has been a significant increase to Tribunal claims which has increased to over 39,000.
ACAS has also reported that in 2018 almost three-quarters of Notifications (73%) did not lead to a Tribunal claim being made. This is because the parties were able to make a formal or informal resolution in order to address the issues which are being brought. In relation to the cases which did result in Employment Tribunal proceedings being issued, ACAS has indicated that this resulted in approximately 51% of cases being settled, with a further 18% being withdrawn by the Claimant.
ACAS have also indicated that they have seen a significant increase in large group actions by approximately 42,000. They indicated that on some occasions there are more than 12,000 individuals involved in one group action concerning cases of equal pay, holiday pay etc.
What does this mean for employers?
As reports will have shown there has been a significant increase in Tribunal claims following the abolition of fees back in 2016. This has meant an increase in pressure on the Tribunal system, response times and receipt of relevant documentation. Going forward employers are likely to encounter the following issues as a result of the backlog of claims:-
- Guillotine on cross-examinations due to the tighter timescales being dictated by the Tribunal;
- Delays in matters proceedings to hear. Some Tribunals are now only able to offer dates from 2021;
- Potentially a rise in litigants in a person pursuing their own claim, which can sometimes increase costs due to their lack of knowledge of the Tribunals;
- Increase in large class actions resulting in significant costs attributed to that claim;
- Strong likelihood of engagement with ACAS conciliators in order to try and resolve matters without the need for long drawn out hearings;
- Use of the judicial mediation and or arbitration schemes in order to try and resolve claims more promptly than waiting for a hearing date; and
- Increase cost to employers.
Points for employers
Bearing in mind the increase in claims, it is imperative that employers are seeking to tackle disputes early doors by adopting a prompt, but fair and efficient process. They need to ensure that their managers and supervisors are trained in grievances and disputes to strive towards an early resolution and to prevent a process from being viewed as unfair.
If you have any concerns regarding an Employment Tribunal claim and or an ongoing dispute between yourself an employee, please do not hesitate to contact a member of the CG team who will be more than happy to assist.