The secret of Acas’s success

Just weeks after erroneously informing us that employment tribunal case numbers are “bouncing back following the slump after the introduction of fees”, on Friday the Law Society’s Gazette trumpeted that Acas early conciliation has “cut tribunal cases in half” since its implementation in April 2014.

To be fair, the (very short) news report is a lot more accurate than its headline – so much so that you have to wonder which narcotic substance the sub-editor was enjoying at the time he or she came up with the headline. And perhaps it really doesn’t really matter whether a sub-editor at the Gazette knows the difference between ‘up’ and ‘down’. But if the self-proclaimed “publication of record to solicitors in England and Wales” can get so confused about basic legal matters, we can’t really blame less specialist news outlets (and politicians) for soaking up and repeating such canards. So it’s worth setting out in detail just how wrong that headline is.

The relevant official statistics are freely available. And – especially if we put them into a chart – even Gazette journalists, with their uncritical eye, should be able to see immediately that the implementation of Acas early conciliation in April 2014 has not reduced the number of ET cases by anything like 50%.

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In January and February 2014 – by which time ET case numbers had pretty much stabilised following the introduction of fees in July 2013 – the average monthly number of new ET cases (single claims/cases + multiple claimant cases) was 1,922. And, over the three months up to March 2015 – the most recent months for which the figures are available – it was 1,626. That’s a reduction of 15.4% – which is slightly less than the 17% reduction predicted in the then government’s final regulatory impact assessment in February 2014, and a lot less than the 50% reduction now trumpeted by the Gazette.

Furthermore, no one can say with certainty that all of that 15.4% reduction can be credited to the implementation of ‘mandatory’ Acas early conciliation. As noted previously on this blog, some ministers seem to believe there has been a significant ‘downward trend’ in ET claim numbers in recent years, as the economy has slowly recovered from the near-fatal shock administered by bankers in 2008. And, if they’re right, some of that 15.4% reduction would have happened anyway.

So, how do we square this modest reduction of 15.4% with the fact – more accurately reported by Gazette journalist Chloe Smith in the body of her news report – that Acas is “preventing” about half of the cases notified to it under the early conciliation scheme from progressing to a tribunal claim? Well, one theory, previously set out on this blog, is that Acas is now hoovering up (and conciliating) lots of workplace disputes that would never have become a tribunal claim in any case.

Which, it must be emphasised, is arguably a very good thing. It has always been clear that the overall number of workplace disputes (or potential tribunal cases) far exceeds the actual number of tribunal cases. And, even before the introduction of hefty, upfront fees, many potential tribunal claimants were deterred by the likely time, stress and cost involved – in March 2014, the then minister for employment relations, Jenny Willott, wrote: “it costs on average £1,800 to present a claim at tribunal”. And now it would seem Acas is helping to resolve some of those ‘non-tribunal’ disputes. Bully for Acas, I say.

But the evident ‘success’ of Acas in hoovering up and resolving those ‘extra’ disputes is a separate matter to the (evidently modest) impact of early conciliation on the actual number of tribunal cases. And, of all people, journalists and sub-editors at the Law Society’s Gazette really ought to understand that.

 

 

Lies, damn lies, and Acas statistics?

One variant of the phrase usually (but erroneously) attributed to Mark Twain is that there are liars, damned liars and experts. Which is fine with me, because I claim no expertise in anything. So the first thing that struck me this morning, when casting an eye over the latest early conciliation statistics and independent evaluation report released by Acas, is that the good people in Euston Tower happily describe themselves as the “workplace expert”.

Not that I dispute that description, and it’s probably worth stating at the outset that, like most people with an interest in workplace dispute resolution, I welcomed and supported the evolution of the early conciliation regime provided for in sections 7 to 10 of the Enterprise & Regulatory Reform Act 2013 from the pre-existing, Acas pre-claim conciliation service. An employment tribunal claim should always be a remedy of last resort, and any provision by the State to help resolve disputes without recourse to a time-consuming, stressful and costly tribunal claim is to be welcomed. So I’m glad that, 12 months after implementation of the early conciliation regime, Acas feels able to proclaim the regime a “success, with high take-up and satisfaction rates”.

However (go fish, Mr Gove), the second thing that struck me this morning was the high number of early conciliation notifications (or ‘cases’) over the first year of operation – 83,423 – relative to the number of tribunal cases over the same period and, indeed, in previous years. In 2012-13, the last full year before the introduction of fees in July 2013, there were just 60,040 tribunal cases (single claims/cases + multiple claimant cases).

So – in a desperate and probably doomed attempt to keep Gem Reucroft happy – I have put the quarterly Acas figures into the following chart. The green columns show the actual number of tribunal cases (single claims/cases + multiple claimant cases), while the blue columns show my projection of the number of tribunal cases we could have expected, had both fees and ‘mandatory’ early conciliation by Acas not been introduced. As previously discussed on this blog, this assumes a continuation of the modest ‘historical downward trend’ in single claims/cases that started in 2010, and about which the Ministry of Injustice – having somehow failed to notice it in 2012 and 2013 – now has so much to say.

More controversially, perhaps, it also assumes that the sharp drop in multiple claimant cases in mid-2013 was largely coincidental to the introduction of fees, and simply reflects the slowing down (and confinement to Scotland) of what the Daily Mail would call The Equal Pay Claim Gravy Train. So it includes the actual number of multiple claimant cases.

Finally, the orange columns show: (a) the average number of Acas pre-claim conciliation referrals, in each quarter up to Quarter 4 of 2013-14 (as I can only find annual statistics); and (b) the number of early conciliation notifications (or ‘cases’) in each quarter since April 2014. And from this we can see that the number of early conciliation notifications far exceeds not just the actual number of tribunal cases, but also the number of tribunal cases we could have expected, had both fees and early conciliation not been introduced. Indeed, in each of the two most recent quarters, the number of notifications was almost twice the number of tribunal cases we could have expected.

Acas

From which we could perhaps conclude that Acas might well be hoovering up, and spending resources dealing with, a fair number of ‘disputes’ that would not have resulted in the issuing of a tribunal claim in any case. We probably need to take account of the number of voluntary pre-claim conciliation cases successfully resolved by Acas in the past before we do reach such a conclusion, but the chart suggests we may need to take a long, hard look at the assertion that the early conciliation regime introduced in April 2014 has been a “success”, at least in terms of reducing the number of tribunal cases (i.e. the principal aim of the policy).

Acas states that the independent evaluation research “found that nearly half of all claimants (48%) who used early conciliation either reached a formal settlement or were otherwise helped by Acas to avoid a tribunal claim”. But if that 48% figure is applied to the total number of notifications in the two most recent quarters (45,498), the resultant number of potential tribunal cases left over (23,659) is only marginally different to my projected number of tribunal cases over those two quarters (23,526), had fees (and early conciliation) not been introduced. In other words, take fees out of the picture, and the introduction of ‘mandatory’ early conciliation by Acas appears to have had little if any impact on the number of tribunal cases.

As noted by Darren Newman on Twitter (in response to the original version of this post), there is some evidence in the evaluation research report that Acas is indeed now hoovering up a significant number of cases that would not have resulted in a tribunal claim. The researchers found that one in four (24%) of claimants described their reason for making an EC notification as “being that they ‘Just wanted to see if a settlement could be reached, and did not have a desire to submit an employment tribunal claim'” (see page 33 of the report).

Anyway, not being an expert, I’ve probably missed something rather obvious here. So I await a gleeful email or direct message from Michael Reed, following which I will rewrite this post.

Acas early conciliation and time limits: let the confusion begin

Nothing gets employment lawyers going like a vigorous argument over tribunal time limits, and the new system of mandatory Acas early conciliation (EC) has provided the ideal excuse for several arguments. Here’s just one of them.

Where a prospective claimant has filed an EC form with Acas, the time limit for bringing a tribunal claim is paused on ‘Day A’ (the date the claimant submits the form) and restarts on ‘Day B’ (the date they receive an EC certificate). However, if the original time limit would have expired less than a month after Day A, there is a further extension so that the last day for lodging a claim is extended to ‘one month after Day B’. In short, you should never have less than a month after you receive the EC certificate to get your claim in.

HM Courts and Tribunals Service states, in its information leaflet Making a claim to an Employment Tribunal, that if the EC certificate is sent by email on 5 June (and presumably received the same day), Day B is 5 June and the last day for bringing a claim (under the one month extension rule) would be 4 July. Acas are apparently in agreement, on the basis that this is how the ordinary time limits in tribunal cases work (e.g. an employee dismissed on 5 April would normally only have until 4 July to bring a claim: three months less one day).

But is the HMCTS leaflet right? It ignores the ‘corresponding date rule’, a rule of interpretation used for calculating the start and end point of notice periods and other periods of time expressed in months. Under that rule, one month after 5 June is the ‘corresponding date’ in July, i.e. 5 July. This is the approach adopted by Practical Law (OK, I have to declare an interest there), Lewis Silkin (according to the excellent time limits calculator they posted on Twitter a few days ago), and Camilla Palmer who has written an article in ELA Briefing this month about early conciliation. I’m also informed that lawyers at BIS support the corresponding date approach.

Who’s right?

Acas are certainly right in their approach to the primary time limits (three months minus a day) according to the case law, and it would arguably make a lot of sense if there was a common approach to the one-month extension. However, there are good reasons, based on differences in the wording of the relevant statutory provisions, why tribunals should use the corresponding date rule.

The EC legislation requires the claim to be submitted within the period ‘ending one month after Day B’, whereas the primary limitation date in (let’s say) an unfair dismissal case is ‘before the end of the period of three months beginning with the effective date of termination’. The difference is that ‘one month after Day B’ means you start counting on the day after Day B (a rule of interpretation that, according to Lord Diplock in Dodds v Walker [1981] 2 All ER 609, has been ‘consistently applied by the courts since Lester v. Garland (1808) 15 Ves. Jun. 248’). On the other hand, ‘three months beginning with the effective date of termination’ means you start counting on the EDT. This crucial difference was explained by the EAT, in an admirably short judgment, in University of Cambridge v Murray [1993] ICR 460It’s worth a read.

Acas have highlighted that it’s safer to adopt a cautious approach. That, of course, takes no account of the fact that some employees may, if they leave it until the last minute, believe they are one day out of time when they are in fact still within time, so cannot present a claim. An employment judge could conceivably, without the benefit of contrary legal argument (and who can afford legal advice these days?), be led down the same path by the HMCTS leaflet.

Don’t get caught out

In view of this very unfortunate difference of interpretation, claimants should really adopt the cautious line followed by Acas and lodge a claim no later than one month less one day after Day B (4 July in the example above) and not risk leaving it until 5 July. Ultimately it will be for the appellate courts to decide, although ending up in the EAT over this is probably not in anybody’s interests.

With many thanks to Camilla Palmer for our email correspondence over this issue, from which I’ve shamelessly borrowed some of the wording for this post.