Written evidence from Acas (the Advisory, Conciliation and Arbitration Service)
Acas (the Advisory, Conciliation and Arbitration Service) is pleased to submit written evidence to your inquiry into court capacity, in addition to the oral evidence given by our Chief Operations Officer, Mr Tony Cooper on 16th March 2021.
As you will know, Acas is a statutory, non-departmental public body with a duty to improve employment relations in Great Britain. In 2019 to 2020, Acas handled approximately 800,000 calls from individuals and employers to our national helpline and our website received 15 million visits from people seeking advice and support. During the year we also provided conciliation in more than 550 collective disputes and trained around 50,000 people on a wide range of workplace-related topics.
Much of Acas’ resource, however, is devoted to providing early conciliation before individuals can bring a claim to an employment tribunal. Last year we received nearly 140,000 such early conciliation notifications. Our early conciliation work, is a very successful form of alternative dispute resolution (ADR) currently helping to resolve 69% of all cases without the need for a claim to be registered with the Employment Tribunal. And, of those that do register with the Employment Tribunal Service, Acas resolve 79% of cases ahead of the hearing date. This clearly saves time and cost to the Employment Tribunal Service as well as to businesses and claimants.
We continue to refine and develop our approach to the delivery of our conciliation services to ensure that we maximise our impact as much as possible, thus resolving even higher proportions of cases in the future and further helping to reduce ET backlogs.
We are also working with BEIS on further amendments to the early conciliation regulations, particularly in relation to the handling of cases against multiple respondents, with the aim of reducing the administrative burden associated with handling those cases through the early conciliation process.
As you will appreciate Acas has considerable experience of dealing with employment tribunals and the evidence we offer in this submission will concentrate on this part of the overall court and tribunal service.
The Committee’s inquiry into court capacity is considering both the immediate issue of backlogs, especially as affected by the impact of Covid 19 and the longer-term capacity of courts and tribunals to deal with cases post Covid 19. These issues can be viewed from two angles:
In this response we would like to consider each of these separately as they relate to employment tribunals.
The Employment Tribunal System
Since the Supreme Court decision in July 2017 which led to the removal of employment tribunal fees, both the ETS and consequently Acas, has been under increasing pressure. This pressure has been exacerbated during the pandemic as the ETS has moved to digital hearings and despite additional recruitment within both Acas and ETS, the backlogs are still being felt, particularly in respect of dates being available for employment tribunal hearings.
Acas has identified the following opportunities where, with investment, it will be possible to reduce pressure on the employment tribunal system and help reduce the backlog.
Currently Acas conciliators are operating with historically high caseloads, which impacts on our ability to influence and resolve cases. Further investment would allow us to specifically target cases already within the employment tribunals system, with a view to increasing resolution rates and reducing the requirement for judicial time. This investment would be concurrent to the ongoing work to resolve cases through the early conciliation process.
A review of the stop the clock arrangements that are in place would also be beneficial. The arrangements continue to cause confusion and lead to time being spent both by Acas and ETS dealing with issues arising from potentially out of time applications. A review of the arrangements and the wider question of limitation periods is worthy of consideration. The aim of a review would be to identify whether improvements can be made which would make the rules easier to understand and reduce the administrative burden that arises from the rules as they currently stand. The stop the clock process is a valuable tool for engaging in the ADR process but can be confusing for parties when they are deciding when their ET claims must be lodged. Clarity about the rules along with a simple calculator for the parties may help those in dispute identify whether they are able to bring their claim and avoid unnecessary concern for the parties and additional work within both Acas and ETS to deal with cases deemed to be ‘out of time’.
Removing redundancy payment claims against insolvent firms from the employment tribunal system - If the number of redundancies rises as expected over the coming months, there is likely to be increased demand on the tribunal system to deal with claims for unpaid redundancy payments. Currently employees seeking unpaid redundancy pay from an insolvent firm are required to first exhaust all alternative avenues – including making a claim through an employment tribunal – before making a claim to the Redundancy Payments Service. One option which would have the potential to reduce the burden on the employment tribunal system would be to remove this requirement, allowing employees to go straight to the Redundancy Payments Service. We are aware that this change would require a change to legislation and consultation with stakeholders.
Integration of areas of the ETS IT system with Acas IT – Developing the case management systems within Acas and ETS to support a streamlined exchange of data and documents between the two organisations without human intervention would be beneficial to the process of resolving disputes as early as possible, and reducing the administrative burden associated with cases. Achieving this integration has the potential to bring significant costs savings for both Acas and ETS which could be focused on reducing backlogs. More effective sharing of data would also help identify key points within the life cycle of a case where Acas intervention would be particularly beneficial and where ADR focussed discussions are most likely to be successful.
Reducing cases going to employment tribunals
Acas has long held that workplace disputes are best resolved in the workplace. This is good for the parties involved and for the country as a whole as it reduces the burden on the economy. Our insight and research has found that there are some systemic problems when it comes to dealing with conflict at an early stage, including:
Lack of line management skills to have the confidence to intervene early and have difficult conversations around issues relating for instance to performance or behaviours
The perception that conflict is an avoidable nuisance that is not taken seriously at senior management level: conversely, a ‘strategic conflict management’ approach is pro-active and picks up signs of unrest at an early stage, assigning clear responsibility for all parties to seek resolution
An over-reliance on formal procedure, rather than find alternative or more creative ways of resolving problems
A diminution in the part played by union and employee representatives in channeling employee voice and helping to act as a sounding board for senior managers and workers to address conflict early.
Acas believes that poor management of conflict is costly, and can be detrimental to employment relations, but that equally good management of conflict can be creative, in helping to promote fairer, more inclusive workplaces underpinned by positive climate and culture of trust and openness. Our end-to-end approach to conflict management promotes the importance of identifying and addressing conflict at the earliest stage; and seeking the most impactful solutions. Where early approaches fail to reach a resolution, we believe that turning that into a clear and fair framework for formal resolution inside the workplace is also important. This involves following best practice in discipline, grievance handling, in investigations and suspensions .
We have identified the following areas where, with the right investment, this can be achieved and, by doing so, the number of cases going to employment tribunal can be reduced:
Acas is happy to provide further details on the thinking behind any of these possible areas of focus, if that would be helpful.