How do businesses and claimants feel about early conciliation?

Our first post outlined the background to ACAS's recent research paper and provided details of the profile of claimants. In Part 2 below we tell you more about how businesses and claimants felt about early conciliation and the outcomes. There is also some information about tribunal fees.

Refusal to take part in early conciliation

Reasons for Claimants not wanting to partake in conciliation:

• 54% thinking that the employer would not be willing to negotiate
• 18 % thinking that the employer would not be willing to engage
• 8% thinking Conciliation would not resolve the issue/ would be a waste of time

Reasons for Employers not wanting to partake in conciliation:

• 26% thinking they had no case to answer
• 24% not willing to negotiate.  (So significantly lower than Claimant’s perception).
• 17% thinking Conciliation would not resolve the issue/ would be a waste of time
• 12% other side was not willing to negotiate

Perception

• There seems to be a perception with claimants that conciliation was a process that they were obliged to complete before they could apply for a tribunal hearing. They may have interpreted conciliation as a legal requirement for ET, while others may have been ‘passively’ participating and did not expect the employer to reach a settlement before the hearing stage.

• Employers much like claimants, do not expect to achieve resolution of the dispute through early conciliation. Some employers considered the process as a pointless exercise which held up the ET process and caused them added stress. For example, one case involved alleged discrimination and the employer felt that the very nature of the case and the claimant involved meant that the issue would not be resolved through conciliation. They continued with the case as they believed they were legally obliged to (in reality, participation is entirely voluntary). In addition, one employer had entered into conciliation hoping for legal advice from Acas, as they could not afford a solicitor (whereas in reality this is not a function of conciliation). (Legal Expenses Insurance would have helped).

Employment Tribunal outcomes

• The most common case outcome was an Acas-agreed settlement (52%), followed by 22% reaching a tribunal hearing, and 8% having a private settlement.
• Where settlements were reached, mostly this was achieved by financial settlement (86% of claimant/claimant representatives) followed by a reference (28%).
• The size of payments varied from £84 to £94,000; the average (median) sum of money received was £5,422. Settlement amounts at post-ET1 conciliation were on average higher than those received at the EC stage.

• Settlements consisting of money were more frequent among employers:

o   who worked in the public sector (92%), compared with those working the private sector (78%);

o   with an internal legal department than those without (74% versus 84%);

o   who did not have any Trade Unions or staff-associations at the workplace than those who did (87% versus 76%);

o   who were members of an employer’s or trade association than those who were not (94% versus 81%).

• In terms of reasons for case withdrawals, 25% of claimants and 28% of employers withdrew because they did not think they would win.

• 20% of claimants who withdrew their case reported that it was because the tribunal hearing fees were off- putting, this compares to 14% of employers citing this reason. When asked to elaborate, the majority said they could not afford to pay the fee. (The cost of access to justice can be prohibitive to all but especially to individuals).

o   When discussing fees, one claimant explained how they would have continued to a hearing if it was less expensive, a view that was also expressed by an employer as they hypothesised the claimant in their case had accepted to settle after seeing the cost of the hearing.

o   Another claimant reported the financial strain the fees placed them under. The fees were paid for on a credit card as they were unemployed at the time.

• The payment of fees had mixed effects on employers. While for some there was no impact on how they viewed the case, for others it changed their perception, seeing the claimant as more serious in intent.

Employment Tribunal Fees

• 35% of claimants (and their representatives) reported that they had applied for a fee remission when they made their ET application, and this was higher among those with lower household incomes (no surprise).
• Of those who applied for fee remission, 80% reported that they were successful. (75% in full, 5% in part).  (Note - in total 72% of claimants did not receive any help with fees).
• When asked what they would have done if their application had been unsuccessful, 40% reported that they would have submitted the application anyway, 13% that they would have pursued the case through some other means, and 37% that they would have dropped their case altogether.
• Among claimants (and their representatives) who did not qualify for a fee remission 79% reported that they paid the application fee themselves  and  19% said it was paid for by a third party on their behalf. (Presumably Trade Union and/or Legal Insurance?)
• Claimants believe that employers take advantage of the fees, using them to discourage potential claimants.
• Misconception with a claimant thinking that the costs associated with a hearing may be temporary as they were aware that in civil cases judges award costs to the winning party in a dispute and thought something similar would happen in an employment tribunal.

Our conclusion

Our policies pay lawyer's costs throughout the early conciliation process, the cost of employment tribunal fees is covered and where claims progress to a tribunal hearing policies pay for the legal costs to represent employees and employers. In addition insurance against Compensation awards and settlements that we have agreed to is available subject to the merits of the case.
Only a small proportion of claimants receive financial help with fees and only 24% of claimants were legally represented at the early conciliation stage. Despite the obvious hardship evidenced in the survey 79% of those who did not receive help progressed their claim.

The research found that employers perceived the early conciliation process as stressful and there was a lack of confidence in the process being successful in achieving resolution.
The findings provide evidence that the reforms have resulted in new needs for insurance protection which support our belief that legal expenses insurance delivers great value for both employees and employers when disputes between the parties arise.