The Advisory, Conciliation and Arbitration Service (ACAS) have reported a significant rise in the number of notifications they received throughout March 2018 to March 2019. ACAS play a very important role in the Employment Tribunal system with the majority of claims being required to go through ACAS’s Early Conciliation process.
The Supreme Court Judgement in R (UNISON) v Lord Chancellor [2017] UKSC 51, where they declared Employment Tribunal fees as unlawful, goes a long way in explaining the rise in the amount of notifications received by ACAS before the claims make their way through to the Employment Tribunal. ACAS have reported an almost 40,000 increase in the amount of notifications since the same period in 2016-2017. The overwhelming majority of these were employee led notifications at just over 97% of notifications received. However, some employers also decided to notify ACAS about potential disputes that may indeed end up the Employment Tribunal but this is a much smaller amount when compared to the amount of employee led notifications at just under 3% of notifications received.
The amount of employer led notifications has actually decreased by around 1,000 since the equivalent period in 2016-2017. There may be an argument to say that these figures show that ACAS notification is being underused by employers, but on the other hand employers may also see self-notification to ACAS as encouraging litigation against them. It should not necessarily be seen in this way and employers should remember that ACAS notification, if used in the correct way, could be quite an effective tool in protecting them from litigation. It is also worth bearing in mind that the ACAS Early Conciliation process is confidential and is conducted away from the public eye, and if agreement is reached with the employee, an agreement is negotiated, which is binding on both parties. This gives employers some certainty and protection, when compared to the often unpredictable and uncertain outcomes of litigation in the Employment Tribunal.
In terms of the types notifications received by ACAS, in general the notifications received were of the same percentage of previous years. Whether that be claims for unfair dismissal, breach of contract, disability discrimination and many others. However, there was a significant spike in race discrimination notifications compared with others. This accounted for 6% in notifications in 2018-2019 and only 1% in 2017-2018. It is unlikely that there has been a sudden increase in the incidences of race discrimination by employers in only one year, but could perhaps be explained by greater awareness of race discrimination legislation in general.
If you are an employee or an employer looking for advice in how to engage with ACAS or having already gone through the ACAS process and are looking for advice on raising or defending a claim in the Employment Tribunal, please get in touch with a member of our specialist employment team today.
