Employment tribunal fees could affect uptake of early conciliation, Acas officer says

In an interview with The Daily Telegraph newspaper Andrew Wareing, chief operating officer with the Government's employment relations service, said that knowing employees might not be able to afford to take a case further could have an impact on the effectiveness of Acas' early intervention services.

"One of the great uncertainties about how parties will react will come when fees are levied," he told the newspaper. "Our prime focus is on what will it mean for our ability to resolve cases. If in future a person has to make a payment to make a claim, employers won't be that interested in early mediation."

He added that companies would be less interested in managing disputes effectively where staff were not "prepared to pay". "This could result in it being more difficult to push a settlement. It will be harder to help," he said.

The Government set out its plans to introduce fees to bring a claim to an employment tribunal in a Ministry of Justice consultation (84-page / 400KB PDF). The document, which is open for comment until 6 March, sets out two possibilities: an initial fee to begin a claim followed by an additional fee if the claim goes to a hearing, or the payment of a single fee and limiting the maximum award to £30,000. Depending on the results of the consultation process fees could be introduced as early as next year, the Government said.

There is currently no charge to an employee to take a claim to an employment tribunal or appeal to the Employment Appeal Tribunal. During financial year 2010/11 218,000 claims and 2,048 appeals were made at a total cost to the taxpayer of $84.2 million, according to Government figures.

Acas was in the process of preparing a formal submission to the Government's consultation, Wareing said.

Selwyn Blyth, an employment law expert with Pinsent Masons, the law firm behind Out-Law.com, said that suggesting that the cost implications of the new system would discourage tribunal applications was "hardly controversial", particularly if the person bringing the claim was already out of work. However, the other side of the argument was the suggestion that unscrupulous employers could use this to their advantage.

"I doubt there is an HR department in the country that takes so disrespectful a view of employment relations that they reduce them to a means of avoiding litigation. Even from a business productivity point of view, good employer-employee relationships are important," he said.

The Government announced plans for Acas to provide an early conciliation service to help prevent workplace disputes going to an employment tribunal as part of its response to the Resolving Workplace Disputes consultation, issued in November last year. From April 2014, anyone intending to make an employment tribunal claim will need to notify Acas in the first instance rather than the Tribunals Service. Acas will then have a specified time to provide conciliation where appropriate before the claim continues to a tribunal.

Acas introduced its pre-claim conciliation service in 2009, and it is currently available for appropriate cases through the service's helpline. It said that 74% of cases which went through the process in 2010-11 were resolved without a subsequent claim to an employment tribunal.

"There is certainly a philosophical move, and there has been over the past five to 10 years, towards trying to get people to resolve their differences outside of the adversarial tribunal system. The difficulty here is that this has to be a consensual process - you can't force people to negotiate," said employment law expert Blyth.

"I can certainly see the merits in encouraging parties to at least consider conciliation in every case and Acas performs its role very well. However, I am not aware of any corresponding resource allocation proposals being made by the Government to recruit new staff for Acas - this then runs the risk of creating a bottleneck of cases awaiting to go through this process before they can move on to a tribunal hearing," he added.

Acas said on its website that it would be working with the Department for Business, Innovation and Skills (BIS) over the coming months to finalise details of additional funding for the service.