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Research Paper Evaluation of Acas conciliation in Employment Tribunal applications 2016 Ref: 04/16 2016 Matthew Downer, Carrie Harding, Shadi Ghezelayagh, Emily Fu, William Pitt and Andrew Thomas (TNS BMRB)

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  • Research Paper

    Evaluation of Acas conciliation in

    Employment Tribunal applications 2016

    Ref: 04/16

    2016

    Matthew Downer, Carrie Harding, Shadi Ghezelayagh, Emily Fu, William Pitt and Andrew Thomas (TNS BMRB)

  • -

    Disclaimer

    The views in this Research Paper are the authors' own and do not necessarily reflect those of Acas

    or the Acas Council. Any errors or inaccuracies are the responsibility of the authors alone.

    For any further information on this study, or other aspects of the Acas Research and Evaluation programme, please telephone 020 7210 3673 or email [email protected]

    Acas research publications can be found at www.acas.org.uk/researchpapers

    ISBN 978-1-908370-66 2

    www.acas.org.uk/researchpapers

  • Evaluation of Acas conciliation in Employment Tribunal applications 2016

    TNS BMRB

    © TNS 2016

  • Contents

    Executive Summary 4

    Glossary 11

    1. Introduction 12

    2. Profile of parties 18

    3. Acas involvement following the ET application 30

    4. The conciliation experience 39

    5. Details of ET case outcomes 58

    6. Potential impacts of EC on post-ET1 conciliation and the ET process 76

    7. Consequences of conciliation and future use of Acas 86

    8. Technical Appendix 91

    Appendix 1 – Questionnaire 107

    Appendix 2 – Topic Guide 158

    2

  • Acknowledgements

    The authors would like to acknowledge the support and advice provided during the course of the project from Andrew Sutherland and Nick Wainwright at Acas.

    We would also like to give a special thanks to all those who contributed to the research process by taking part in an interview.

    Report Authors

    Matthew Downer, Carrie Harding, Shadi Ghezelayagh, Emily Fu, William Pitt and Andrew Thomas (TNS BMRB)

    3

  • Executive Summary

    Background

    Acas has a longstanding statutory duty to promote the resolution of claims to the Employment Tribunal (ET) in order to avoid recourse to a full hearing, by means of its conciliation service – but the landscape in which the service operates has changed significantly since 2013; first with the introduction of a new ET fees regime in July 2013, and second, in April 2014, with the introduction of a new Acas service, ‘Early Conciliation’ (EC), under which it is now mandatory for employees intending to lodge an ET claim to contact Acas in the first instance, to see if the dispute could instead be resolved through EC. For cases that are not resolved through EC that continue on the path to an Employment Tribunal, Acas conciliation is again offered in what is now known as post-ET1 conciliation (formerly known as Individual Conciliation (IC)).

    This paper reports the findings of an evaluation of the aforesaid post-ET1 conciliation offer, building upon the findings of an earlier EC evaluation1. Taken together, the two studies comprise an evaluation that spans the entire Individual Dispute Resolution (IDR) cycle (a sequence that begins with EC and potentially culminates in an ET Hearing, by way of post-ET1 conciliation). This second stage of the study is based on representative (telephone) surveys of claimants, employers and representatives whose EC window had closed2 between 29th

    September 2014 and 31st January 2015; 512 interviews were achieved in the claimant survey (89 with longitudinal respondents who also engaged with the earlier EC survey and 423 with top-up sample); 490 interviews were achieved in the employer survey (86 with longitudinal respondents and 404 topped-up). These were supplemented by a series of qualitative interviews with a broad range of these service users.

    Profile of parties

    Profiling questions in the survey reveal that eight in ten claimants (79 per cent) worked full-time for the employer they made their claim against, and the same amount had also worked for their employer for at least one year or more. One fifth (19 per cent) were a member of a Trade Union. Fifty seven per cent of claimants were male and tended to be aged over the age of 35. The profile of claimants who submit ET applications (and are hence offered post-ET1 conciliation) is largely in line with the profile of claimants who submit EC notifications (and are hence offered Early Conciliation); however key differences include a smaller proportion of claimants identifying as White and a higher proportion of older claimants and those working within the private sector at the point of the ET1 submission.

    Among the claimant representatives interviewed, the majority were solicitors, barristers or another kind of lawyer (62 per cent) and 14 per cent were a friend, neighbour or family member. By combining Acas management information with survey data it emerges that, in all,

    1 Downer, M. et al (2015) Evaluation of Acas Early Conciliation 2015. Acas Research Paper.

    2 The closing of an individual’s EC window is marked by the drawing up of a COT3 settlement or, where a settlement is

    not reached, the issuing of a Certificate entitling the claimant to make a tribunal claim.

    4

  • a representative was used by almost eight in ten (78 per cent of claimants), a substantial increase from the EC stage where they were used by a quarter of claimants (24 per cent). In comparison to the EC stage, there has been an increase in the use of more ‘formal’ representatives (including solicitors, barristers and lawyers, as well as Trade Union and working representatives).

    Two thirds of claimants (and their representatives) (66 per cent) reported that EC had previously taken place in their case prior to the submission of the ET claim. Interestingly, these individuals were found to hold significantly different (more positive) perceptions of the conciliator and the post-ET1 conciliation process as a whole, compared to those who had not previously engaged in EC (details summarised below).

    Just over eight in ten (83 per cent) employers interviewed operated within the private sector, and 37 per cent operated in large organisations (with 250 or more employees). Two thirds (67 per cent) had an internal Human Resources (HR) department, and a third (36 per cent) had an internal legal department, and 28 per cent were members of an employer’s or trade association. As with claimants, the profile of employers at the post-ET1 stage differs in relation to some characteristics of employers at the EC stage. In comparison to employers at EC, those at the post-ET1 conciliation stage are more likely to be from the private sector and be large organisations. They are also more likely to have an internal legal department, but less likely to have active Trade Unions or staff associations active their workplace.

    A combination of Acas management information and survey data show that representatives were used by 84 per cent of all employers. This is a large increase from the EC stage where only 29 per cent of employers used representatives. Among those employer representatives interviewed, the vast majority were also solicitors, barristers or another kind of lawyer (89 per cent), and their make-up of employer representatives has increased from the EC stage (56 per cent).

    Just under half of employers (and their representatives) (46 per cent) reported that EC had previously taken place in their case prior to the submission of the ET claim.

    Acas involvement following the Employment Tribunal application

    The majority of parties remembered receiving the initial letter from Acas (88 per cent of claimant and their representatives and 83 per cent of employers and their representatives). Half of claimants (and their representatives) (50 per cent) reported that Acas had made the first contact with them following this letter, with a quarter (26 per cent) reporting that it was them who had initiated contact. Employers (and their representatives) were more likely to report that Acas had made the first contact, with half reporting this (52 per cent), with contact only being self-initiated in one in five cases (20 per cent).

    Three quarters of claimants (and their representatives) (75 per cent) who confirmed having contact with Acas following the ET submission reported taking part in the post-ET1 conciliation service offered to them, as did six in ten employers (and their representatives). The main reasons for not taking part for claimants focused around thinking that the employer would not be willing to negotiate (54 per cent), or that the employer would not be willing to engage (18 per cent). For employers (and their representatives), a quarter (26 per cent) felt they had no case to answer to, and a further quarter (24 per cent) reported that they were not willing to negotiate. For both parties, there are similarities with the kinds of reasons previously given for not having partaken in EC in the earlier evaluation.

    5

  • Multivariate analysis was undertaken to explore the key determinants of whether claimant-side services users choose to take part in post-ET1 conciliation. This showed that the following claimant-side service users were most likely to report taking part in post-ET1 conciliation: those who had previously taken part in EC prior to submission of the ET application; those in open track cases; those who reported receiving the initial letter from Acas following the application, and; male claimants. Among employer-side service users, the following types of users were most likely to report taking part in post-ET1 conciliation: those who had taken part in EC earlier in the case; those who made the first contact with Acas following the submission of the ET application; those who recalled receiving the initial letter from Acas following the application; those without an internal HR department, and; those organisations which had previously had an ET claim made against them.

    The conciliation experience

    The majority of claimants (and their representatives) and employers (and their representatives) had contact with the Acas conciliator via telephone (93 per cent and 86 per cent respectively) and for two thirds of claimants and over half of employers (65 per cent and 54 per cent respectively) this was the main method of contact. Email was also widely used (by 81 per cent of claimants and 78 per cent of employers) and usage of this during post-ET1 conciliation was significantly higher than was reported during the EC stage. Considerable majorities of both claimants and employers were happy with the amount of contact they had with Acas (77 per cent of claimants and 86 per cent of employers), with very small numbers (two per cent of claimants and less than one per cent of employers) indicating that they would have preferred less contact. Similarly, majorities of both reported that the Acas conciliator had ‘always’ or ‘usually’ been available when needed (70 per cent of claimants and 66 per cent of employers).

    All participants were asked to rate the conciliator in respect of a range of competencies and behavioural traits. For both claimants and employers (and their respective representatives) competency ratings were highest with regard to the conciliator ‘relaying proposals and offers to and from each party’ (with 68 per cent and 84 per cent rating the conciliator as ‘very’ or ‘fairly’ good at this, respectively). Elsewhere, when presented with a range of behavioural traits that conciliators may exhibit, ratings among both parties were highest with reference to the conciliator being ‘trustworthy’ (87 per cent of claimants and 91 per cent of employers) and ‘listening to what you had to say’ (85 per cent of claimants and 88 per cent of employers agreed). Vast majorities of both groups who took part in post-ET1 conciliation judged that the Acas conciliator had been ‘even handed’; 83 per cents of claimants and 89 per cent of employers (for claimants, this is a ten-point increase than was reported during the EC stage).

    Satisfaction with the overall post-ET1 conciliation service received from Acas was high: 74 per cent for claimants (and their representatives) and 86 per cent for employers (and their representatives). When looking at all service users who engaged with post-ET1 claim conciliation in combination – i.e. claimants, employers and both sets of representatives taken together – the overall aggregate level of satisfaction stands at 80 per cent (broadly in line with results from the 2015 Early Conciliation (EC) evaluation, and the 2012 IC evaluation, where net satisfaction for all users were 83 and 81 per cent respectively).

    6

  • Employment Tribunal outcomes

    Among both sides, the most common case outcome was an Acas-agreed (COT3) settlement, with just over half of both claimants and employers (and their respective representatives) (52 per cent of each) confirming this outcome. This was followed by just over a fifth reporting reaching a tribunal hearing (22 per cent of claimant-side users and 23 per cent of employer-side service users). Private settlements were reached by eight per cent of claimants, and seven per cent of employers.

    Multivariate analysis was run in order to more fully understand the driving factors behind whether or not a settlement was reached. For each party, two logistic regression models were built, one exploring ‘internal’ factors (those within Acas’ control) and the other ‘external’ factors (those beyond Acas’ control) 3. For claimants (and their representatives), the following internal factors were found to have a significant positive impact on reaching a settlement:

    Where claimants (and their representatives) rated Acas as ‘very good’ at relaying offers and proposals between claimant and employer.

    Whether contact between the claimant (and their representative) was via email (although it is worth acknowledging that email is used extensively to facilitate the drawing up of the COT3, which may go some what to explaining this association)

    Where claimants and their representatives said that Acas did not explain the law as it applied to their case (it being most likely that these claimants were already aware of the law and how it applied to their case, and therefore did not need Acas to do this).)

    The following external factors had a significant positive impact on reaching a settlement:

    Where the claimant did not have a long-term illness or health problem or disability

    Where claimants were engaged in an open track case.

    Among employers (and their representatives) the following internal factors had a significant positive impact on reaching a settlement:

    Employers (and their representatives) rating Acas as ‘very important’ in resolving the case.

    Employers (and their representatives) initiating most contact with Acas during the case:

    Whether contact between the claimant (and their representative) was via email (although note again that email is used extensively to facilitate the drawing up of the COT3)

    Where employers (and their representatives) rated Acas as ‘neither good nor poor’ at explaining the tribunal process.

    Where employers (and their representatives) did not know whether Early Conciliation had previously taken place (although the vast majority of this group were employer representatives so this finding most likely suggests that where an employer uses a representative in a case a settlement is more likely to be reached).

    The following external factor had a significant impact on reaching a settlement:

    Where a representative was used in the case (as also suggested above).

    3 For full details on the regression models, including the statistical significance of each factor, please see section 8.3 in the technical appendix.

    7

  • Where settlements were reached, the most frequently reported element of settlement terms was money (reported by 86 per cent of claimant/claimant representatives and 80 per cent employer/employer representatives), followed by a reference (reported by 28 per cent and 24 per cent respectively). The size of payments varied considerably; the average (median) sum of money received was £5,422 (employers reported a slightly lower average (median) payout of £4,999). Settlement values varied by track, with largest amounts in open track cases. Across all case tracks, settlement amounts at post-ET1 conciliation were on average higher than those received at the EC stage.

    Six in ten claimants (and their representatives) (60 per cent) who had contact with Acas felt that Acas’ involvement was important in helping to move the parties closer towards resolving the case, and of those who settled, six in ten (60 per cent) agreed that Acas involvement itself was a factor in this decision (i.e. had gone beyond simply functioning as a procedural vehicle for bringing about the resolution). Employers’ (and their representatives) attitudes were slightly less positive, with half (50 per cent) of those who had contact with Acas feeling that Acas’ involvement was important in helping to move the parties close towards resolving the case, and of those who settled, four in ten (41 per cent) agreeing that Acas involvement was itself a factor in this decision. Relatively high proportions of claimants and employers party to cases that were not Acas-settled nonetheless indicated that Acas had been important in moving the parties closer together (40 per cent and 26 per cent, respectively); suggesting that the impact of conciliation can extend beyond settled cases alone.

    In terms of reasons for case withdrawals, the main reason for this was that the claimant did not think they would win (reported by 25 per cent of claimants (and their representatives) and 28 per cent of employers (and their representatives). One fifth (20 per cent) of claimants (and representatives) who withdrew their case reported that it was because the tribunal hearing fees were off putting. Those who withdrew were asked to what extent Acas was a factor in helping them to reach the conclusion to do so; 17 per cent of claimants (and their representatives) judged that Acas had been a factor in helping them reach the conclusion to withdraw the case (the majority (81 per cent) judging that Acas did not play a role here).

    In terms of ET fees more generally, just over one third (35 per cent) 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, and those in open track cases. Of those who applied for fee remission, four fifths (80 per cent) reported that they were successful and when asked what they would have done if their application had been unsuccessful, four in ten (40 per cent) reported that they would have submitted the application anyway, 13 per cent that they would have pursued the case through some other means, and 37 per cent that they would have dropped their case altogether.

    Among claimants (and their representatives) who did not apply for a fee remission or applied but whose application was rejected in full, eight in ten (79 per cent) reported that they paid the application fee themselves.

    Within the quantitative survey data it is possible to derive an estimate of the overall proportion of claimant-side users who submitted an ET claim but did not progress to a hearing, and were either settled or reached a different outcome where Acas was a factor in reaching this decision – giving an ‘ET avoidance’ rate of 61 per cent. By combining this figure with the ET claim avoidance rate previously computed during the EC evaluation, it is possible to go further still and calculate an overall ET avoidance figure for Acas of 71 per cent that spans the entire conciliation process. That is, according to survey evidence provided by claimants across these

    8

  • two surveys, Acas conciliation achieves a settlement or is deemed important in the claimant's decision to not take further action in 71 per cent of early conciliation cases.

    The most frequently mentioned reason by both parties for not reaching a settlement and instead progressing to a tribunal hearing was that the employer was not willing to negotiate (reported by 76 per cent of claimants/claimant representatives, and 31 per cent of employers/employer representatives). This was followed by the employer making an offer but it not being accepted by the claimant (reported by 10 per cent and 21 per cent respectively). Once at the tribunal hearing, when the hearing ruled in favour of the claimant, it awarded money in the majority of cases (reported by 85 per cent of claimant-side service users, and 92 per cent of employer-side service users).

    Just over six in ten claimants (and their representatives) (62 per cent) were satisfied with the outcome of their case, as were three quarters (76 per cent) of employers (and their representatives). As would be expected, this score was very dependent on the actual outcome of the case (albeit these differences only reached the requisite level of statistical significance for claimant-side service users). When looking at all service users in combination (i.e. claimants, employers and their representatives), overall satisfaction with case outcome stands at 69 per cent. This is broadly in line with the 2012 IC survey (72 per cent), and, interestingly, is above that of the EC stage (57 per cent of EC users having been satisfied with the outcome of their case at that earlier stage).

    Potential impacts of EC on post-ET1 conciliation and the Employment Tribunal process

    The qualitative interviews indicated that parties did not spontaneously distinguish between the EC and post-ET1 conciliation processes, generally perceiving it as single continuous service rather than two discrete stages.

    The uptake of post-ET1 conciliation was higher among both claimants (and their representatives) and employers (and their representatives) where EC had taken place earlier in the case, and multivariate analysis revealed that this was a key determinant of whether a party chooses to take part in post-ET1 conciliation.

    Bi-variate analysis revealed some interesting differences in the perceptions of the conciliator and the post-ET1 conciliation process where EC had previously taken place compared with where it had not, with more positive perceptions and ratings of certain conciliator traits and skills in evidence where EC had already taken place.

    When directly asked about their use of Acas conciliation as a whole (i.e. prior use of EC as well as any subsequent use of post-ET1 conciliation), just over six in ten claimants (63 per cent), and 46 per cent of employers agreed that the service they received from Acas before the submission of the ET claim (i.e. Early Conciliation) helped them feel prepared for the process after submission. Additionally, 54 per cent of claimants and 46 per cent of employers agreed that EC made it quicker to resolve their case once the subsequent ET claim had been submitted.

    Whilst an Acas-agreed settlement was the most commonly reported outcome by both parties irrespective of whether EC had taken place or not, it was higher among claimants (and their representatives) in cases where EC had previously taken place (63 per cent compared with 51 per cent). For employers (and their representatives), there was no difference but this could be

    9

  • linked to the high proportion of employer representatives who did not know whether EC had taken place earlier in the case.

    These positive associations build on those which were evident from the findings from an earlier 2012 Pre Claim Conciliation (PCC) research project4 - PCC being the precursor service to EC – which identified a number of positive associations between initially taking part in PCC and the subsequent ET experience, including higher settlement rates and higher satisfaction with the subsequent ‘IC’ service (as it was then called). One possible explanation for this – identified in the qualitative interviews – could be related to the collective length of the conciliation process across both the EC and post-ET1 conciliation stages, giving interviewees time to ‘cool off’ and reconsider about the prospect of settling.

    Consequences of conciliation and the future use of Acas

    A quarter of employers (23 per cent) reported that Acas had provided them with information which would help them to avoid another case in the future, and a further quarter reported that they had implemented new policies, procedures or practices as a result of guidance from their Acas conciliator.

    Anticipated future use of Acas conciliation was high, with 87 per cent of claimants (and representatives) and 92 per cent of employers (and their representatives) reporting that they would use Acas conciliation services in the future if they were involved in a similar situation again.

    Parties were also asked about their potential interest in various possible future Acas online services: online guidance material designed to help parties through the conciliation process; online forms or questionnaires which automate some stages of conciliation, and; a live, online communication service that would be available throughout the whole process, in addition to the existing conciliation services. Just over half of claimants (and their representatives) (ranging from 55 per cent to 59 per cent) reported interest in the three proposed services. Among employers (and their representatives), interest was slightly lower, ranging from 40 per cent for online guidance material, 47 per cent for a live, online communication service. and 53 per cent for online forms to automate some stages of conciliation.

    4 TNS BMRB (2012) Why PCC referrals become Employment Tribunal Claims. Acas Research Paper

    10

  • CC

    Glossary

    Term Description

    IC Individual Conciliation, also known as ‘Post-ET1’ conciliation: Acas’ longstanding service for settling individual disputes after a claim has been submitted to an Employment Tribunal

    2012 IC Survey The previous evaluation of ‘Individual Conciliation’ as it was then termed, undertaken in 2012, prior to the introduction of Early Conciliation. A key base for comparison with this study.

    EC Early Conciliation: Acas service introduced April 2014, since when claimants have been required to notify Acas of their intention to lodge an employment tribunal claim, and will be offered the opportunity to engage the services of an Acas conciliator, who will seek to resolve the dispute without going to court.

    2015 EC The precursor survey to this second survey; the 2015 EC Survey surveyed Survey parties to Early Conciliation in 2015. Another key base comparison with this

    follow-up study.

    PCC Pre-Claim Conciliation: A former Acas service, introduced in 2009 as an extension of IC, and since supplanted by EC, for settling potential ET claims before they entered the Tribunal system. The service was voluntary and was offered to callers (mainly employees) to the Acas Helpline.

    Collective Conciliation: Acas’ longstanding service for resolving collective employment disputes between employers, trade unions and other representative bodies.

    SETA The Survey of Employment Tribunal Applications: a survey series that aims to provide information on the characteristics of the parties in, and the key features of, employment tribunal (ET) cases.

    ET1 Employment Tribunal claim form

    Track Acas classification of cases that broadly reflects the old system of ‘three period categories’ whereby ET cases were allocated jurisdictional ‘tracks’: ‘Fast track’ cases involving straightforward questions of fact that can

    be quickly resolved should the case reach a hearing (e.g. non-payment of wages)

    ‘Standard track’ cases involving somewhat more difficult issues and requiring a greater degree of case management (e.g. unfair dismissal)

    ‘Open track’ cases involving the most legally complex issues and generally requiring the most amount of resource to resolve (e.g. discrimination).

    11

  • 1. Introduction

    Acas (the Advisory, Conciliation, and Arbitration Service) commissioned TNS BMRB to undertake an evaluation of its conciliation services, including both Early Conciliation (EC) and conciliation in Employment Tribunal applications (that is, after the submission of an ET1 claim form). This report outlines the findings from the second part of the research, focussing on this later element of Acas’ conciliation offer. The findings from the first part of the part of this research, evaluating Acas’ EC service, were published in 20155.

    It is worth noting at the outset that this second stage of the conciliation process was formerly known as ‘Individual Conciliation’ (IC) (to distinguish it from the service provided in cases of collective disputes), but with the introduction of EC, this name has less intrinsic value, as both elements should be seen as elements of a continuous conciliation offering for individuals, as opposed to separate offerings. Nevertheless, comparisons are made throughout this report with the 2012 IC report, when IC referred to conciliation that occurred after the submission of the ET16.

    1.1 Background

    Acas has a longstanding statutory duty to promote the resolution of claims to the Employment Tribunal (ET) in order to avoid recourse to a full tribunal hearing. As already noted, this service was historically known as ‘Individual Conciliation’ (IC), and since the introduction of Early Conciliation is known as ‘post-ET1 conciliation’ (in that it occurs following the submission of an ‘ET1’ claim form to the Employment Tribunal). The landscape in which conciliation operates has changed significantly since 2013; there having been significant policy changes in individual dispute resolution, most notably:

    First, since 29th July 2013, claimants who make a new Employment Tribunal (ET) claim have been required to pay a fee when doing so7. The amount of the fee varies depending on the type of claim. ET claim volumes fell dramatically following the introduction of fees – steeply at first, but with rate of decline starting to slow thereafter and latterly stabilising:

    o Between April to June 2014, ET statistics showed a 71 per cent fall in individual claims relative to the same period in 20138.

    o However, between July to September 2014, ET statistics showed a fall of 61 per cent in individual claims relative to the same period in 20139.

    5 Downer, M. et al (2015) Evaluation of Acas Early Conciliation 2015. Acas Research Paper. 6 Thornton, A. and Ghezelayagh, G. (2013) Acas Individual Conciliation Survey 2012. Acas Research Paper. 7 N.B. The introduction of fees was not an Acas initiative, nor does Acas play any role in administering the fees regime. 8 Tribunal Statistics Quarterly April – June 2014, Ministry of Justice Statistics Bulletin https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/352914/tribunal-statistics-quarterly-april-june-2014.pdf9 Tribunals and Gender Recognition Certificate Statistics Quarterly July – September 2014, Ministry of Justice Statistics Bulletin https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/385759/tribunal-grc-statistics-quarterly-jul-sep-2014.pdf

    12

    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/385759/tribunal-grchttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/352914/tribunal-statistics-quarterly

  • o Between October to December 2014, ET statistics showed a fall of 31 per cent relative to the same period in 201310.

    o The final quarter of financial year 2014/15 showed a similar drop, with a drop of 25% in January to March 2015 compared to the same period in 201411.

    o Moving into financial year 2015/16 there has however been a levelling out in the number of individual claims. In April to June 2015 there was an uplift of 19% from the previous year; July to September saw an uplift of 4% and October to December less than 1%12.

    Second, less than a year after the introduction of fees – on 6 May 2014 – it became mandatory for employees intending to lodge an ET claim to contact Acas in the first instance, so that an offer could be made to attempt to resolve the dispute through a new service called ‘Early Conciliation’ (with EC having already been made available on a non-mandatory basis a month earlier, since 6 April 2014)13. The legislative base for EC, the Enterprise and Regulatory Reform Act 2013, added a new requirement to sit beneath Section 18 of the Employment Tribunals Act 1996, requiring prospective claimants “to contact Acas before instituting proceedings”, in response to which Acas must “endeavour to promote a settlement between the persons who would be parties to the proceeding”.

    All claimants are now required to contact Acas before a claim can be submitted to the ET, which gives Acas the opportunity to talk to claimants about the benefits of conciliation. This is in contrast to the old arrangements, under which claimants advanced straight to the submission of an ET claim form (‘ET1’). Historically, this was the trigger for Acas to offer what was then called ‘IC’ and there was no requirement to contact Acas whatsoever before lodging an ET claim, although it was possible to do so on a voluntary basis. Conversely, those intending to lodge an ET claim are now required to notify Acas by completing a simple EC notification form on the Acas website before ET proceedings can be instituted.

    However EC does not supplant post-ET1 conciliation – the service under consideration for this report – which remains a key Acas service, albeit one that is now operating in a very changed context: EC now pre-dates post-ET1 conciliation as part of the individual’s ‘dispute resolution journey’ and, in cases where EC is successful in achieving a resolution, the need for post-ET1 conciliation will be negated; only where EC fails to achieve a resolution and a claimant decides to proceed with lodging a claim with the ET service will conciliation continue to be offered.

    For claimants who go on to lodge an Employment Tribunal claim (ET1), Acas will continue to offer a (post-ET1) conciliation service right up until the tribunal hearing to help parties try and find a solution (although it is that since July 2013 most claimants will have been required to pay a fee when submitting their ET1). The ET1 form will be copied to both Acas and the employer. Many parties to conciliation post ET1 will have

    10 Tribunals and Gender Recognition Certificate Statistics Quarterly October – December 2014, Ministry of Justice Statistics Bulletin https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/411604/Tribunal-GRC-statistics-quarterly-oct-dec-2014.pdf11 Tribunals and Gender Recognition Certificate Statistics Quarterly October – December 2015, Ministry of Justice Statistics Bulletin https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/506487/tribunals-gender-recognition-stats-oct-dec-2015.pdf 12 ibid 13 Note whilst it is mandatory to notify Acas, it is not mandatory to take part in EC.

    13

    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/506487/tribunalshttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/411604/Tribunal

  • already exhausted EC (and failed to reach an agreement) and will have talked through the issue with an Acas conciliator, in these cases the same conciliator will continue to offer support.

    1.2 Project aims and objectives

    1.2.1 Recap of the first part of the research: Evaluation of Early Conciliation

    As already noted this is the second of a two-part evaluation of Acas’ conciliation offer. The first part of the research took the form of an evaluation of EC, conducted November 2014 to March 2015, with 1,331 claimants and 1,255 employers surveyed by telephone (supplemented by a series of qualitative interviews). This first survey found high levels of satisfaction with the new EC service from users: employers and their representatives (86%) and claimants and their representatives (79%); high ratings for the quality of conciliators; and high proportions of participants saying they would use the service again (84% for claimants, 92% for claimant reps, 87% for employers and 94% for employer reps). Half (55 per cent) of claimants whose cases had not resulted in an Acas COT3 settlement reported that, at the time of the first survey, they had either submitted or were planning to submit an ET claim, whereas 45 per cent had decided against this course of action. Taking this further, an estimate was derived of the overall proportion of claimants who took part in EC but did not go on to submit an ET claim for whom Acas was a factor in helping them to reach this conclusion (a combination of those who reached a settlement through EC and those who did not settle but nevertheless report Acas being a factor in their not submitting an ET claim) – giving an overall ‘ET claim avoidance’ rate of 48 per cent for EC at this stage. The findings from the first part of the evaluation were published in full in 201514.

    1.2.2 Project aims and objectives of the second part of the research: Evaluation of ‘post-ET1’ conciliation

    Building on the first part of the research, the second part of the research aimed to evaluate the effectiveness and impact of Acas’ conciliation post ET1 including longer, more complex, typically discrimination cases (by way of shorthand, within Acas these cases are referred to as ‘open track’ cases15).

    Within that, the research aimed to establish:

    A reliable picture of the views of users of all party types who participated in Acas conciliation; claimants (employees), claimant representatives, respondents (employers) and respondent representatives including a picture of their aims, expectations and comprehension at the point of entering into conciliation post ET1.

    Performance indicators including satisfaction with the Acas service.

    Data with regard to the barriers and facilitators to settlement.

    Ratings of Acas conciliators.

    The impact of conciliation on the dispute outcome (distinguishable from the impact of external factors on the dispute outcome).

    14 Downer, M. et al (2015) Evaluation of Acas Early Conciliation 2015. Acas Research Paper.

    15 This is a semantic inheritance from the now-defunct system of ‘three period categories’ whereby ET cases were allocated ‘fast’, ‘standard’ or ‘open’ jurisdictional tracks, to reflect the varying amounts of resource they required to

    resolve; see Section 1.4.1 for full details.

    14

  • The costs and benefits of post ET1 conciliation.

    A comparison of differences in case outcomes and satisfaction between cases in different period categories, main jurisdictions, representation status and party type (claimants, respondents and representatives of both) and other standard demographics.

    The impact that the newly introduced EC service has on the conciliation process post ET1 and its effectiveness.

    1.3 Research design The research approached adopted a predominately quantitative methodology which was supplementary with small qualitative element.

    1.3.1 Quantitative survey design The research design consisted of two telephone surveys:

    1. A telephone survey of claimants (and their representatives) who had submitted an Employment Tribunal claim.

    2. A telephone survey of employers (and their representatives) who had an employment Tribunal claim taken against them.

    The sample frame consisted of all claimants and employers (or their representatives) whose EC window had closed16 between 29th September 2014 and 31st January 2015, and who went on to submit an ET claim. The sampling was made on an individual basis and not at a case level, with claimants and employers (or their representatives) being selected separately to each other. Building on the first part of the research, in this second part of the study the sample consisted of both ‘longitudinal’ respondents, who had participated in the first EC survey, and ‘fresh’ respondents for whom this was the first time they fed into the research programme.

    The full details of the survey design can be found in the Technical Appendix.

    1.3.2 The questionnaire The questionnaire had a set of core content which collected information on:

    The post-ET1 conciliation outcome

    The post-ET1 conciliation experience

    The Acas conciliator

    Satisfaction with post-ET1 conciliation outcome and service and overall experience of Acas conciliation

    The impact of EC on post-ET1 conciliation

    Where respondents were part of the ‘fresh’ sample the questionnaire also covered topics that had been covered in the previous EC survey:

    Details of the employment

    Details of the dispute

    16 The closing of an individual’s EC window is marked by the drawing up of a COT3 settlement or, where a settlement is not reached, the issuing of a Certificate entitling the claimant to make a tribunal claim.

    15

  • Characteristics of the claimant

    Characteristics of the employer

    Characteristics of the representative

    Where possible the questionnaire utilised questions sourced from the previous EC survey as well as previous evaluations of PCC and IC, to allow for comparability of results. The full questionnaire can be found in Appendix 1.

    Prior to the main stage fieldwork, TNS BMRB conducted cognitive testing and piloting stages. Further details of these stages are included in the Technical Appendix

    1.3.3 Fieldwork Fieldwork took place from the 14th October 2015 to 7th December 2015. Further details about fieldwork management and response are included in the Technical Appendix.

    In total, 512 interviews were achieved in the claimant survey, representing a response rate of 57 per cent (193 interviews with claimants, and 319 interviews with claimant representatives). Of the 512 interviews, 89 were with longitudinal respondents and 423 were top-up. In total, 490 interviews were achieved in the employer survey, representing a response rate of 60 per cent (99 interviews with employers, and 391 interviews with employer representatives). Of the 490 interviews, 86 were with longitudinal respondents and 404 were top-up.

    1.3.4 Weighting The weights applied on employer and claimant datasets comprise two components:

    (a) A design weight, which addresses imbalances in the responding sample of employer and claimant cases introduced by the sample design that was implemented.

    (b) A post-stratification weight, which accounts for potential nonresponse bias in the employer and claimant survey datasets.

    Full details of the weighting strategy is included in the Technical Appendix

    1.3.5 Qualitative research To supplement the telephone surveys, additional qualitative research was used to provide further insight into the customer journey through the post-ET1 conciliation process and gain insight into the impacts of EC on post-ET1 conciliation. Fourteen 20-30 minute telephone interviews were conducted with a range of claimants and employers. All interviewees were recruited from survey respondents who had agreed to be re-contacted (only those having actually taken part in post-ET1 conciliation were invited).

    The interviews covered the dynamic between EC and post-ET1 conciliation the experience at post-ET1 conciliation, and changes in approach to future disputes. The topic guides used are reproduced in Appendix 2. Interviews took place from during November 2015.

    16

  • The achieved sample frame for the qualitative element is shown below:

    Table 1.1 Achieved qualitative sample frame

    Sample group Interviews Sample type Track

    Settled at IC 6 2 Claimants 2 Employers 2 Representatives

    2 Open track 2 Standard track 2 Fast track

    No settlement, went to ET 4 2 Claimants 1 Employer 1 Representative

    1 Fast track 3 Standard track

    No settlement, did not go to ET

    4 3 Claimants 1 Employer

    3 Open track 1 Standard track

    1.4 Notes on analysis Within the data tables, * symbol signifies a value between 0 and 0.5 per cent, while a –

    symbol signifies zero.

    In the analysis, totals do not always sum to 100 per cent due to rounding.

    The figures cited refer to (column) percentages unless otherwise stated.

    Significance testing has been carried out in the report and only differences which are statistically significant at the 95 per cent confidence interval or above are described in the report (unless otherwise stated).

    1.4.1 Analysis by case ‘track’ Subgroup analysis by case ‘track’ forms an important part of the way the data is analysed throughout this report. Case ‘track’ is a classification system used by Acas to categorise cases that broadly reflects the old system of ‘three period categories’ whereby ET cases were allocated jurisdictional ‘tracks’ – as follows:

    ‘Fast track’ cases involving relatively straightforward questions of fact that can often be quickly resolved should the case reach a hearing (e.g. non-payment of wages)

    ‘Standard track’ cases involving somewhat more difficult issues and requiring a greater degree of case management (e.g. unfair dismissal)

    ‘Open track’ cases involving the most legally complex issues and generally requiring the most amount of resource to resolve (e.g. discrimination).

    17

  • 2. Profile of parties

    This chapter outlines the characteristics of the four ‘types’ of respondents interviewed for this survey, comprising:

    ‐ Claimants

    ‐ Claimant representatives

    ‐ Employers

    ‐ Employer representatives

    2.1 Profile of claimants This first section outlines the profile of the claimants who participated in the survey; the data under discussion are comprised of responses to this second (post-ET1 conciliation) survey, as well as longitudinal data from the previous EC survey.

    2.1.1 Employment characteristics of claimants First, we consider the employment characteristics of claimants as of the time they originally contacted Acas about their workplace problem (i.e. when submitting the EC notification):

    Claimants worked in a number of different occupations (Table 2.1), with the greatest number working in ‘Associate Professional and Technical Operations’ occupations (20 per cent), ‘Elementary occupations (15 per cent) and ‘Manager, Director or Senior Official’ positions (14 per cent).

    In comparison to the working population claimants are less likely to be from professional occupations, and more likely to be from associate professional and technical occupations.

    18

  • Table 2.1: Claimant occupation (Standard occupational classifications (SOC) 2010)17

    Working Survey population

    % (APS)18

    % Associate Professional and Technical Occupations 20 14

    Elementary Occupations 15 11

    Managers, Directors and Senior Officials 14 10

    Professional Occupations 12 20

    Administrative and Secretarial Occupations 12 11

    Sales and Customer Service Occupations 10 8

    Skilled Trades Occupations 9 11

    Caring, Leisure and Other Service Occupations 5 9

    Process, Plant, and Machine Operatives 4 6

    Unweighted base 18219 30,269,600 Base: All claimants who provided a response which was codable.

    The majority of claimants (79 per cent) worked full-time (more than 30 hours a week), with 15 per cent of claimants working part-time (less than 30 contracted hours per week). Only five per cent of claimants worked depending on availability or if they were contacted by their employer. This is in line with the profile of claimants who submit EC notifications. As recorded in the EC survey, 77 per cent of claimants worked full-time with 17 per cent working part-time. In the UK working population, the ratio between full time and part time employees is 75:2520, suggesting that claimants are slightly more likely to be working full time than the wider working population.

    Nearly eight in ten (79 per cent) claimants had worked for their employer for at least one year at the time of contacting Acas about the workplace problem. This is slightly higher than claimants at the EC notification stage, where as reported in the EC survey, 71 per cent of claimants had worked for their employer for at least one year.

    A fifth (22 per cent) had worked for their employer for more than 10 years, and a further fifth (20 per cent) had done so for five to nine years. The full breakdown is detailed in Table 2.2.

    17For SOC2010 structure and descriptions of unit groups see: http://www.ons.gov.uk/ons/guide-method/classifications/current-standard-classifications/soc2010/soc2010-volume-1-structure-and-descriptions-of-unit-groups/index.html 18 Annual Population Survey, ONS, October 2013-September 2014. 19 Includes only claimants who provided a response which was codable. 20 Annual Population Survey, ONS, October 2013-September 2014. Note: Here and elsewhere, comparisons are made with APS data relating to this period specifically since this is when the majority of EC notifications for those in the survey sample were originally submitted.

    19

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  • Table 2.2 How long claimant had worked for employer at the time of contact with Acas about the workplace problem

    % Less than a year 21

    1 to 2 years 24

    3 to 4 years 13

    5 to 9 years 20

    More than 10 years 22

    Unweighted base 143 Base: All claimants

    Three quarters of claimants (76 per cent) worked in the private sector and 14 per cent worked in the public sector. Only eight per cent of claimants worked in the non-profit/voluntary sector. Once those who are ‘unsure’ and those in the non-profit/voluntary sector are removed; the private: public ratio stands at 85:15. By comparison, among all employees in the working population21, 77 per cent work in the private sector and 23 per cent in the public sector. Whilst the sector profile of claimants at the post ET1 conciliation stage is broadly in line with profile of claimants at the EC notification stage, at the post ET1 stage there is a slightly higher proportion who work in the private sector (76 per cent compared to 71 per cent) and a slightly lower proportion in the public sector (14 per cent compared to 19 per cent).

    One in five claimants (19 per cent) reported being a member of a Trade Union or staff association at the time of contact with Acas. This compares with 23 per cent of claimants who submitted EC notifications (as reported in the EC survey).

    In addition to the characteristics of their employment as of the time they contacted Acas (i.e. when they initiated EC), claimants were also asked about their current employment situation at the time of the interview22:

    Six in ten claimants (59 per cent) were in paid employment at time of the interview.

    Among those who were not currently in paid employment, 21 per cent confirmed having had paid work at some point since leaving their employer, whereas eight in ten (77 per cent) had not (equating to 29 per cent of all claimants).

    21 Annual Population Survey, ONS, October 2013-September 2014.

    22 For claimants interviewed in the EC survey, this will be at the time of the EC interview (November 2014 to March

    2015). For claimants interviewed only in the IC survey, this will be at the time of the IC survey interview (October 2015 to December 2015).

    20

  • 2.1.2 Personal characteristics of claimants

    Claimants were also asked a series of questions about their personal characteristics:

    Fifty-seven per cent of claimants were male. This is slightly higher than the proportion of men in the working population (53 per cent)23, but broadly in line with the 2012 IC survey (where 56 per cent of claimants were male), and with the EC survey (where 56 per cent of claimants were also male)

    More than nine in ten claimants (93 per cent) identified as heterosexual, which is in line with claimants who submit EC notifications (where 92 per cent identified as heterosexual). Two per cent identified as gay or lesbian, and four per cent did not want to give an answer.

    Almost four in ten claimants were aged between 45 and 54 years (37 per cent). Few claimants were under 25 (four per cent) or over 65 (four per cent). As shown in Table 2.3, claimants who submit ET applications tend to be older than claimants who submit EC notifications. And in comparison to the general population, as reported in the EC survey, claimants who submit EC notifications tend to be older than the working population, and therefore this pattern becomes even more pronounced among claimants who go on to submit ET applications. This reflects the age profile of claimants in the 2012 IC survey.

    Table 2.3 Claimant age Current 2015 EC Working Survey survey population

    % % (APS)24

    % Under 25 4 8 14 25-34 15 21 23 35-49 40 37 34 50+ 41 32 29

    Unweighted base 19125 1,059 32,365,600 Base: All claimants who provided their age

    Seven in ten claimants (71 per cent) described their ethnic group as White, which is a decrease from the previous IC survey in 2012, where 83 per cent of claimants self-identified as White and also a decrease from the EC notification stage where 78 per cent of claimants self-identified as White (as reported in the EC survey). Twelve per cent identified as Asian, 11 per cent identified as black, three per cent identified themselves as coming from a mixed ethnic background and a further three per cent refused to report their ethnic group. When examining the differences in profile between the current survey and the EC survey, the fall in the proportion of claimants from the White ethnic group is being largely driven by the fall in the proportion of white respondents among open track cases (see Table 2.4).

    23 Annual Population Survey, ONS, October 2013-September 2014.

    24 Annual population survey October 2013- September 2014.

    25 This base does not reflect just claimants in this survey, it also includes those longitudinal claimants interviewed in the previous EC survey appointed representation between surveys.

    21

  • Table 2.4 Claimant Ethnicity Current survey

    (Claimants who submit ET applications)

    2015 EC survey (Claimants who submit EC

    notifications)

    White BME Refused/No answer

    Unweighted base

    All

    % 71 26 3

    193

    Fast Track

    %

    Standard Track

    %

    Open Track

    % 87 86 43 11 11 52 2 3 4

    65 80 48

    All

    % 78 21 2

    1,078

    Fast Track

    %

    Standard Track

    %

    Open Track

    % 78 83 68 20 17 30 2 - 2

    346 285 447

    Base: All claimants

    Half of all claimants (51 per cent) described their religion as being Christian, with seven per cent as Muslim, and five per cent as Hindu. A third (32 per cent) reported that they were of no religion. This reflects the profile of claimants at the EC notification stage.

    Almost nine in ten claimants (89 per cent) spoke English as their first language, which compares with 86 per cent of claimants who submitted EC notifications.

    Three in ten claimants (28 per cent) reported having a long-term illness, health problem or disability. This is slightly higher than the equivalent figure for the working population (21 per cent)26, and in the 2012 IC survey where 23 per cent reported such a condition. However, it is line with claimants at the EC notification stage (where 86 per cent also reported having such an illness, health problem or disability).

    Reflecting claimants at the EC notification stage, at the ET application stage, nearly four in ten (38 per cent) confirmed having an income greater than £30,000 per year. The full breakdown is shown in Table 2.5.

    26 Annual Population Survey, ONS, January 2012 - September 2012.

    22

  • Table 2.5: Claimant income Cumulative

    % % Under £5,000 pa 3 3 £5,000 pa to £9,999 10 14 £10,000 pa to £12,999 6 20 £13,000 pa to £14,999 4 24 £15,000 pa to £17,999 8 32 £18,000 pa to £19,999 5 38 £20,000 pa to £24,999 7 45 £25,000 pa to £29,999 7 51 £30,000 pa or over 38 89 Don’t know 3 92 Refused 8 100

    Unweighted base 193 193 Base: All claimants

    Most claimants (86 per cent) had not made a previous Employment Tribunal claim, while one in nine (11 per cent) confirmed that they had filed an ET claim previously (at any workplace). This reflects claimants at the EC notification stage, where, as reported in the EC survey, nine per cent had previously made an ET claim.

    2.2 Profile of claimant representatives

    As detailed in Chapter 1, where a claimant was selected for the claimant survey, if a representative was listed on Acas’ MI records as dealing with the case on the claimant’s behalf, they were approached for an interview rather than the claimant. (This is in keeping with the approach used in the precursor survey for EC).

    All claimant representatives who were interviewed were also asked a number of profiling questions:

    The majority of claimant representatives were solicitors, barristers or some other kind of lawyers (62 per cent). One in seven (14 per cent) were friends, neighbours, spouses or partners, while one in ten (10 per cent) were Trade Union or worker representatives at the claimants workplace (Table 2.6). At the EC stage (as reported in the EC survey), whilst a solicitor, barrister or some other kind of lawyer was the most commonly used claimant representative, they were only used by 46 per cent of claimants. Additionally, the next most frequently used representative was a Trade Union or worker representative (25 per cent), followed by a friend, neighbour, spouse or partner (16 per cent).

    23

  • Table 2.6 Type of representative %

    Solicitor, Barrister or some other kind of lawyer 62 Friend/Neighbour/Spouse/Partner 14 Trade Union / Worker representative at workplace 10 Citizens Advice Bureau 3 Personnel or human resources specialist 3 Neighbourhood Local Law Centre or other voluntary advice agency 1 Legal specialist in company/Company lawyer 1 Representative 1 External Consultant/Insurance company advisor 1 Don’t know * Other 2

    Unweighted base 319 Base: All claimant representatives

    Two thirds of claimant representatives (67 per cent) had more than five years’ experience of dealing with ET claims, with 16 per cent having between 1-5 years’ experience. Only four per cent had worked with ET claims for less than a year, and one in eight (13 per cent) claimant representatives had never dealt with an ET claim before (Table 2.7). This suggests that claimant representatives used at the post ET conciliation stage are more experienced that those used at the EC notification stage. The EC survey revealed that 22 per cent of claimant representatives had dealt with ET claims for less than a year, with 59 per cent for more than 5 years. This may be reflective of the changes in the types of representatives used, with a higher proportion of more ‘formal’ representatives (such as solicitors and barristers and Trade Union representatives).

    Table 2.7 Length of time representatives had dealt with ET claims %

    Less than a year 4 1 to 5 years 16 More than 5 years 67 Never dealt with an employment tribunal claim before 13 Don’t know 1

    Unweighted base 319 Base: All claimant representatives

    Almost half of claimant representatives (45 per cent) tended to usually represent the claimant, a third (32 per cent) reported regularly represent either party, while 13 per cent of representatives had never represented either party before. One in eleven (nine per cent) claimant representatives reported that they usually represented the employer in ET claims.

    24

  • 2.3 Case characteristics of claimant-side cases

    As explained above, where Acas’ MI records listed representative details, then the representative, rather than the claimant, was approached for interview. However, in the claimant interviews, a check question was included which asked the claimant to verify whether they had in fact used the services of a representative to deal with Acas during the conciliation process. In this way, it was possible to identify instances where a representative was used, but this fact was not recorded in Acas management information.27

    When combining both these data sources (Acas MI plus the results of the check question) the fact emerges that overall, a representative was used by almost eight in ten (78 per cent) claimants, with only a fifth (22 per cent) pursuing their case without representation. This is much higher than at the EC stage, where representatives were used by 24 per cent of claimants.

    Claimants’ use of representatives varied according to dispute track, with those whose cases were fast track being less likely to appoint a representative than those whose cases were standard or open track (58 per cent versus 83 per cent and 82 per cent respectively).28 This is reflective of the pattern of representative use at the EC stage.

    Two thirds of claimants (and their representatives) (66 per cent) reported having previously taken part in EC before the Employment Tribunal claim had been submitted. In three in ten cases (29 per cent), however, EC did not take place. Five per cent of respondents did not know whether EC had taken place or not.

    Just over four fifths of claimant representatives (83 per cent) took on their representative role before the ET claim was submitted. From the previous EC survey we know that a quarter (24 per cent) of claimants had representation at the EC stage, and as such it is likely that a large proportion of representatives were appointed during the period in between the issuing of the Acas EC certificate and the subsequent submission of an Employment Tribunal claim. One in ten (10 per cent) representatives took on their role after the ET1 was already submitted, while six per cent took on their role at the very point of the ET claim being submitted.

    2.4 Summary of the profile of claimants and their representatives at the ET application stage in comparison to the profile of claimants and their representatives at the EC notification stage

    As described in the previous sections, the profile of claimants who submit ET applications (as recorded by this survey) is largely in line with the profile of claimants who submit EC notifications (as recorded in the 2015 EC survey). There are some differences, the most notable being the ethnicity of claimants; with a smaller proportion identifying as White and a higher proportion from a BME background at the ET application stage (compared with the EC notification stage). Claimants are also more likely to be older and work within the private sector.

    27 This can happen for a variety of reasons: for example claimants may engage or disengage their representative at any point prior to or throughout the ET process.28 To re-cap: Fast track cases involving straightforward questions of fact that can be quickly resolved should the case reach a hearing (e.g. non-payment of wages); Standard track cases involving somewhat more difficult issues and requiring a greater degree of case management (e.g. unfair dismissal); Open track cases involving the most legally complex issues and generally requiring the most amount of resource to resolve (e.g. discrimination).

    25

    http:respectively).28http:information.27

  • The most commonly used representatives at both stages were solicitors, barristers or lawyers, but the use of such representatives was much higher at the post ET1 conciliation stage than the EC notification stage. The same pattern was also evident for the use of Trade Union and work representatives. Claimant representatives also tend to be more experienced at the post ET1 conciliation stage, which is likely to be reflective of the use of more ‘formal’ representatives at the ET application stage.

    2.5 Profile of employers

    The profile of employer respondents are now considered:

    Just over eight in ten employers (83 per cent) worked in private sector organisations, while 10 per cent were based in the public sector. A further six per cent of employers operated in the non-profit/voluntary sector. This represents an increase in private sector usage since 2012, when the previous IC survey indicated that 76 per cent of participating employers were from private industry. It also represents an increase from the EC stage, where 74 per cent of employers who took part in the 2015 EC survey worked in the private sector.29

    As detailed in section 2.1.1, in the UK working population, the split between employees in the private and public sectors is 77:2330, suggesting that, relative to the general working population, employer respondents are disproportionately likely to operate in the private sector, with the overall private: public split in this survey being 89:11 (when those in the non-profit/voluntary sector are excluded). The same pattern was evident at the EC stage (where the equivalent split was 83:17), however, the over representation of employer respondents in the private sector has become more pronounced at the post ET1 conciliation stage.

    Employers were from a number of different industries, the most common being ‘human, health and social work activities’ (13 per cent), ‘Wholesale and Retail Trade; Repair of Motor Vehicles and Motorcycles’ (13 per cent) and ‘Administrative and Support Services Activities’ (13 per cent). The full breakdown is shown in Table 2.8.

    In comparison to data from the APS, employers within the banking, finance and insurance industry sectors are over-represented in ET cases (27 per cent compared to 17 per cent indicated in the APS)31 and under-represented within the public administration, education and health sectors (19 per cent compared to 30 per cent as indicated in the APS).

    29 When interpreting this comparison (and others in this section), the population of employers of the 2015 EC survey should be noted: it only included employers against whom EC notifications had been made, who had been contacted

    about the EC notification by Acas and been offered EC.

    30 Annual Population Survey, ONS, October 2013 – September 2014.

    31 Annual Population Survey, ONS, October 2013 - September 2014. APS bandings differ from those used in this

    research, hence Table 2.7 does not include the comparative APS data.

    26

    http:sector.29

  • Table 2.8: Employer industry (UK Standard Industrial Classification (SIC) of Economic Activities 2007)32

    % Human Health and Social Work Activities 13

    Wholesale and Retail Trade; Repair of Motor Vehicles and 13 Motorcycles Administrative and Support Services Activities 13

    Accommodation and Food Service Activities 9

    Other Service Activities 8

    Professional, Scientific and Technical Activities 6

    Construction 6

    Information and Communication 6

    Manufacturing 5

    Real estate activities 4

    Transport and Storage 4

    Financial and Insurance Activities 3

    Arts, Entertainment and Recreation 2

    Water Supply: Sewerage, Waste Management and Remediation 2 Activities Public Administration and Defence; Compulsory Social Security 2

    Education 1

    Agriculture, Forestry and Fishing 1

    Mining and Quarrying *

    Electricity, Gas, Steam and Air Conditioning Supply *

    Unweighted base 93

    Base: All employers who provided a response which could be coded.

    In terms of workplace size, six in ten (62 per cent) employers were from a small workplace (having fewer than 50 employees), 14 per cent from a medium-sized workplace (having 50-249 employee) and 14 per cent were from large workplaces (with 250 or more employees). Six in ten (59 per cent) employers worked for organisations with more than one workplace in the UK.

    In terms of organisation size, four in ten (39 per cent) employers were from small organisations (1-49 employees), two in ten (21 per cent) were from medium-sized organisations and 37 per cent were from large organisation (250 or more employees). This broadly reflects the organisation profile in the 2012 IC survey, however, it differs to the EC notification stage, where (as recorded in the EC survey) half of employer respondents were from large organisations (49 per cent).

    32 For UK SIC 2007 structure and descriptions of unit groups see: http://www.ons.gov.uk/ons/guide-method/classifications/current-standard-classifications/standard-industrial-classification/index.html

    27

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  • In line with the EC stage, two thirds (67 per cent) of employer organisations had an internal Human Resources (HR) or Personnel Department that deals with personnel issues. Just over two thirds (36 per cent) had an internal legal department, and this differs from the EC stage, where only one fifth (22 per cent) of employer respondents reported the presence of such a department. A quarter (26 per cent) had active Trade Unions or staff organisations at the workplace (a decrease from 36 per cent at the EC stage) and 28 per cent were members of an Employer’s or Trade Association which could give advice on personnel or employment relation matters (broadly in line with the EC stage where the equivalent figure was 31 per cent).

    In terms of the employer respondents themselves, nine in ten (89 per cent) reported that they were the person who normally deals with employment disputes at their organisation.

    2.6 Profile of employer representatives As detailed in Chapter 1, where an employer was selected for the employer survey, if a representative was listed on Acas’ records as dealing with the case on the employer’s behalf they were approached for an interview rather than the employer directly.

    In line with the EC stage, the majority of employer representatives were ‘solicitors, barristers or some other kind of lawyer’ (Table 2.9). However, this majority proportion has increased substantially, from 56 per cent of all employer representatives at the point of EC to 89 per cent in post-ET1 conciliation.

    Table 2.9 Type of representative

    %

    Solicitor, Barrister or some other kind of lawyer 89 Legal specialist in company/Company lawyer 4 Personnel or human resources specialist 4 External Consultant/Insurance company advisor 1 Other 1 Owner/Senior manager / General manager * Employers’ association/ Trade Association *

    Unweighted base 391 Base: All employer representatives

    Employer representatives tended to be very experienced, with over eight in ten (82 per cent) having worked with ET claims for more than five years and one in six (16 per cent) for between one and five years. In line with claimant representatives, more experienced employer representatives tend to be used at the post ET1 stage in comparison to the EC stage. The EC survey revealed that 73 per cent of employer representatives had over five years’ experience (which compares to 82 per cent at the post ET1 conciliation stage).

    Three quarters (74 per cent) of employer representatives tended to usually represent employers in ET disputes, with almost a quarter (23 per cent) tending to represent both claimants and employers. Only three per cent of employer representatives normally represented claimants, and just one per cent had never represented either party before.

    Nearly six in ten (58 per cent) employer representatives were appointed before the ET claim was submitted, with a third (33 per cent) appointed after the ET claim was

    28

  • submitted (i.e. at the point of the ET3 response). Seven per cent of employer representatives were appointed after the employer had already made the ET3 response and two per cent were unsure when the representative had been appointed.

    2.7 Case characteristics of employer-side cases As explained earlier, where Acas’ MI records listed representative details, then the representative, rather than the employer, was approached for interview. However, as with claimants, in the employer interviews, a check question was also included which asked the employer to verify whether they had in fact used the services of a representative to deal with Acas during the conciliation process. In this way, it was possible to identify instances where a representative was used, but this fact was not recorded in Acas management information. Combining the data in this way, it emerges that, overall, representatives were used by 84 per cent of employers. This represents a large increase in the use of representatives following the EC stage, where only 29 per cent of employers had used representatives33.

    As with claimants, employers’ use of representatives varied according to track of dispute, with employers least likely to use a representative in fast track disputes (58 per cent) compared with those in standard track (87 per cent) and open track (91 per cent).

    In terms of prior conciliation, earlier in the dispute resolution process, it was established that EC had taken place already for 46 per cent of employers (and their representatives), with a quarter (26 per cent) of employer-side service users reporting that EC had not previously occurred. Interestingly, nearly three in ten (28 per cent) employer-side service users were unsure about whether EC had taken place or not. Unsurprisingly, the vast majority of those who were unsure were employer representatives (90 per cent) – many of whom would not have been involved at that earlier point.

    Just over half (52 per cent) of employer organisations had previously had an ET claim made against it in the past; four in ten (44 per cent) had no prior experience of an ET claim having been made against them. Four per cent of employers and employer representatives were unsure about whether the organisation had previously had ET claims filed against it in the past.

    2.8 Summary of the profile of employers and their representatives at the ET application stage in comparison to the profile of employers and their representatives at the post-ET conciliation stage

    As described in the previous sections, the profile of employers at the post-E1 stage (as recorded in the current survey) differs in relation to some characteristics of employers at the EC stage (as recorded in the 2015 EC survey34). In comparison to employers at the EC stage, those at the post-ET1 conciliation stage are more likely to be from the private sector and based at large organisations. They are also more likely to have an internal legal department, but less likely to have active Trade Unions or staff associations active their workplace.

    As with claimants, the most commonly used employer representatives at both stages were solicitors, barristers or lawyers, but the use of such representatives was much higher at the post-ET1 application stage than the EC notification stage, and they also tended to be more experienced at this later point.

    33 Again, it should be noted this is based on employers who were contacted about the ET notification and were offered

    EC.

    34 As previous footnote.

    29

  • 3. Acas involvement following the ET application

    This chapter explores the interactions between parties and Acas during the period of time directly after the Employment Tribunal application is submitted and Acas post-ET1 conciliation is offered. It then examines the key determinants of service uptake.

    3.1 Initial contact with Acas All parties were asked about their initial contact with Acas after the ET application had been submitted. This covered the initial letter from Acas as well as later (telephone) contact.

    3.1.1 Initial claimant contact with Acas All claimants (and their representatives) were asked whether they received a letter from Acas explaining that they would be contacted in order to try and settle their employment dispute through conciliation.

    Nine in ten (88 per cent) claimants (and their representatives) reported having received this letter. Where post-ET1 conciliation took place, claimants (and their representatives) were more likely to say that they had received this letter (94 per cent compared with 83 per cent where conciliation did not take place).

    When asked, half of claimants (and their representatives) reported that contact was first made by Acas; a quarter (26 per cent) said that they made the first contact and a further seven per cent reported no contact being made at all. It is worth noting here that around one in five (18 per cent) claimants (and their representatives) could not recall who made first contact. When this is accounted for, the proportions shift to the extent that six in ten (61 per cent) claimants (and their representatives) report Acas making first contact, with 31 per cent saying that they had made first contact, and no contact being established for eight per cent (Figure 3.1).

    Figure 3.1 Whether Acas or claimant made first contact

    61%

    31%

    8%

    Acas made first contact

    Claimant made first contact

    No contact was made

    25%

    9%

    Claimant side Employer side

    66%

    Acas made first contact

    Employer made first contact

    No contact was made

    Unweighted Base: 420 (claimants); 379 (employers) Base: claimants (and their representatives) who knew who made the first contact.

    30

  • Claimants were more likely to report that they made initial contact than claimant representatives were (34 and 21 per cent respectively). This difference becomes more pronounced when respondents who did not know who made the initial contact are removed from the base (40 per cent of claimants versus 26 per cent of claimant representatives).

    There were noticeable differences as to which party had made first contact, relative to the final outcome of the case: Acas was most commonly said to have made first contact in cases which ultimately ended in a settlement (58 per cent); they were least likely to be said to have done so where a private settlement resulted (33 per cent)35 (Table 3.1).

    Table 3.1:Whether Acas made first contact by case outcome (claimant side)

    Settled %

    Withdrew %

    Hearing %

    Struck out %

    Default judgement

    %

    Private settlement

    %

    All %

    Acas made contact 58 46 42 43 29

    33 50

    Claimant 30 made 22 30 25 30 37 26 contact No contact was made 1 6 13 15 19

    15 7

    Don’t know 19 18 20 11 15 21 18

    Unweighted 304 50 84 20 17 36 512 base Base: All claimants (and their representatives)

    Where claimants (and their representatives) reported both receiving a notification letter and Acas making initial contact, they were asked how soon after receiving the letter this contact had been established. It is worth noting that a third of respondents (32 per cent) did not know, and so, to ensure a fairer indication of the timescales they have been removed from the subsequent analysis.

    The majority of claimants (and their representatives) reported that Acas contact had been established between two working days and a week after receipt of the letter (59 per cent); with largely even proportions saying it was within two working days (22 per cent) and longer than a week (19 per cent).

    Claimants (and their representatives) whose cases were fast track were more likely to report having been contacted within a week than were those whose cases were standard or open track (93 per cent versus 77 per cent and 81 per cent respectively).

    Claimants (and their representatives) who reported no contact being made between them and Acas after the ET claim was submitted were asked whether any attempts were made by either side to contact each other. The vast majority (90 per cent) stated that neither side had attempted to make contact; three per cent said they had tried to establish contact, and a further two per cent reported that both sides had tried to make contact without success. A further five per cent reported that Acas had attempted (but failed) to make contact with them

    35 29 per cent of those whose cases ended with a default judgement reported Acas making first contact, but base size is too low to report.

    31

  • (although it stands to reason that this will be an underestimate since some (failed) Acas attempts to contact the claimant will have gone undetected by the latter).

    3.1.2 Initial employer contact with Acas When asked whether they had received a letter from Acas to notify them that a conciliator would be making contact to try and resolve the employment dispute, eight in ten employers (and their representatives) confirmed that they had (83 per cent). Six per cent reported not having received this letter and one in ten did not know whether or not they had.

    All employers (and their representatives) were also asked whether the first contact after the ET claim had been submitted was initiated by Acas or them. Half (52 per cent) reported that contact had first been initiated by Acas. For one in five the contact was initiated by the employer (or their representative) and seven per cent reported no contact being made. As with claimants there was a large proportion of don’t know responses to this question (22 per cent); and as such excluding these from the results is likely to give a more accurate picture, whereby Acas reportedly made initial contact in two thirds of cases (66 per cent), with employers (or their representatives) making the first contact for a quarter of cases (25 per cent) and with nine per cent reporting that no contact was made.

    Employer representatives were more likely to report having initiated contact with Acas than employers were (30 per cent versus 13 per cent when removing ‘Don’t know’ responses).

    Similarly, employers (and their representatives) who went on to actually take part in post-ET1 conciliation were more likely to report having initiated contact with Acas; 32 per cent of this group making first contact, compared to 19 per cent of those who did not take part in conciliation. This is perhaps not surprising since it indicates employers (and their representatives) being more actively engaged with the service.

    Employers (and their representatives) who received a notification letter ahead of Acas initiating contact were asked how soon after receiving this letter contact was made. As with other questions regarding initial contact with Acas, there was a significant number of ‘Don’t know responses’ (44 per cent), therefore the findings below have been re-based to only include those who were able to provide an answer.

    It follows that one in ten employers (or their representatives) reported being contacted within two working days; 44 per cent said that it was within a week (but more than two working days), with a similar proportion (46 per cent) reporting that Acas had contacted them more than a week after they received the letter.

    When asked, nearly all (94 per cent) employers (and their representatives) who reported not having had any contact with Acas since the claimant’s ET1 submission said that neither they nor Acas had made any attempt to establish contact (although again it stands to reason that some (failed) Acas attempts to contact these individuals may have gone undetected entirely).

    3.2 Uptake of post-ET1 conciliation All respondents who had contact with Acas after the submission of the ET claim were asked whether or not they took part in the conciliation that was offered at this point; for those respondents that did not participate, they were also asked why this was. This question was asked in an open manner but responses were attributed to a set of pre-existing codes and as such are not necessarily a reflection of the language used by respondents.

    32

  • 3.2.1 Claimant uptake of post-ET1 conciliation Three quarters (73 per cent) of claimants (and their representatives) who had been in contact with Acas since the submission of the ET claim confirmed having taken part in the conciliation that was offered to them by Acas. Twenty one per cent stated that they did not take part in conciliation and six per cent responded ‘Don’t know’36. Interestingly, this level of service uptake for post-ET1 conciliation is slightly lower than the proportions taking part in EC. As reported in the previous EC survey report, 81 per cent of claimant-side service users had agreed to participate at that earlier stage.

    Claimants (and their representatives) whose cases were open track were the most likely to take part in post-ET1 conciliation (81 per cent) and those with standard track cases the least (66 per cent). Seven in ten (71 per cent) claimants (and their representatives) whose cases were fast rack reported participating in post-ET1 conciliation. (By comparison, in the 2015 EC survey, claimants involved in open or standard track cases were more likely to participate than were those whose cases were fast track.)

    Where claimants (and their representatives) reported having previously taken part in EC (having failed to settle at that earlier stage), they were notably more likely to say that they had participated in post-ET1 conciliation as well, with eight in ten of this group reporting taking part, compared with 59 per cent of those who did not take part in EC37. It follows that, for claimants, a failure to settle at EC is not an impediment to resuming conciliation after the submission of the ET1 – quite the contrary.

    3.2.2 Claimant reasons for participating in post-ET1 conciliation The qualitative interviews explored the reasons why claimants took part in post-ET1 conciliation. Claimants did not experience the conciliation process as having two stages – they discussed their reasoning for participating in conciliation overall (see Section 6.1). Claimants split into two groups: for one group they hoped it would result in a swift resolution to their dispute, although many were prepared to continue all the way to the tribunal hearing. They felt aggrieved by their dispute and wished to use Acas or the tribunal to vindicate their case and provide a fair – and ideally quick – resolution to their dispute. The second group of claimants did not expect post-ET1 conciliation to result in a settlement and were participating in conciliation services only as a means to reaching a tribunal hearing. For some, they saw conciliation as part of the process and believed this was a requirement to reach the tribunal.

    3.2.3 Claimant reasons for not participating in post-ET1 conciliation Within the quantitative survey, claimants (and their representatives) who did not participate in conciliation subsequent to the submission of an ET1 were asked why this was. The majority reported that it was the fault of the employer, with over half (54 per cent) saying that the employer had not been willing to negotiate, or that they knew the employer would not be willing to engage (18 per cent). Claimants (and their representatives) were largely consistent in their reasons for not participating, with only three reasons being mentioned by more than four per cent of this group (Table 3.2).

    36 N.B. The survey relies on respondents’ own self-declaration of the use of post-ET1 conciliation. It is evident from the survey data that, in some instances, survey respondents’ recall of taking part in post-ET1 conciliation may be incorrect, as some respondents reported not having taken part in post-ET1 conciliation but nevertheless co