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Bronwyn McKenna: Acas - The Gatekeeper?

Thursday 18 December 2014

Bronwyn McKenna, Chair of the Employment Lawyers Association and solicitor at UNISON, talks about the early conciliation process and how it has been adopted so far.


Bronwyn McKenna

Bronwyn McKenna is a solicitor. She works in-house at UNISON where she is an Assistant General Secretary. In 2002 she was appointed to the CAC. She was elected Chair of the Employment Lawyers Association 2014 - 2016.

Bronwyn McKenna blog profile

Unions have always been in the business of conciliation. Where a fair settlement can be achieved, we will always encourage negotiated agreements.

I have full confidence in Acas as an honest broker of settlements particularly in the collective sphere. Acas has quietly and expertly fashioned settlements often before the outside world knows there is a dispute.

Why then did unions have such concerns about Early Conciliation? We have concerns about its compulsory nature. I am uneasy about there being a gatekeeper to the Employment Tribunal at all - even if it is Acas who have been entrusted with the keys.

So far, the figures reassure us that the architecture underpinning early conciliation is sound. Acas's attention to IT and training appears to have paid off. Formal settlements still fall short, however, of the comparative settlement rate in pre claim conciliation. Early fears that parties would refuse to engage in the process seem to have been false.  We don't know however enough yet about the level of the settlements and there is a need for detailed qualitative and quantitative research on the operation of early conciliation.

Employment Lawyers Association (ELA) members highlighted specific snaggings. Legal doubt surrounds the shifting time limit. Cases are sure to arise too as to whether or not the notification to Acas properly encompassed the claim that was later brought. The risk of the wrong employer's name being used is high. I don't doubt Acas's good intentions that this should not bar a subsequent claim but the issue will have to be determined by the courts. The rules on multiple claims are complex and difficult to operate. Holiday pay claims may provide a strenuous stress test. Regional inconsistency is a fear for claimants and respondents.

Anecdotally, UNISON organisers report growing confidence in the service and some cases being resolved without the need to involve lawyers.  A case was settled recently for a care home worker who was owed £630 in wages. The money was paid quickly and directly to the member. This is the kind of case which regrettably ET fees render uneconomic without the support of a trade union.

In my view, it is not tenable to consider the operation of early conciliation in isolation from fees; the term "early" implies that something e.g. a claim will follow "later". Dame Hazel Genn, Dean of Laws and co-director of the University College London Judicial Institute, has written powerfully about the benefits of alternative dispute resolution. She is clear that mediation or conciliation is not a standalone alternative to litigation. To be effective and fair, conciliation must take place in the "shadow of adjudication". The likelihood of judgement by a court on the claim thus provides the platform for settlements.

I hope as the shadow of adjudication recedes, there will still be a willingness to engage in early conciliation.

More blogs on the first six months of Early Conciliation:

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