January 2006

Evidence of Thompsons Solicitors

  • Thompsons is the largest national trade union employment rights law firm in the UK.  The vast majority of our instructions come from the Trade Union Movement.  Since our creation in 1921, we have as a matter of principle acted only for claimants in personal injury proceedings and overwhelmingly in Employment (formerly Industrial) Tribunals.
  • We note the Committee’s issues for consideration.  We note in particular the reference to how ACAS contributes to increased productivity, an odd approach to measuring the work of a statutory body that is expressly charged with promoting the improvement of industrial relations – see section 209 of the Trade Union and Labour Relations (Consolidation) Act 1992.  [This formulation is of course what remains of the Service’s original duty to “promote the improvement of industrial relations, and in particular to encourage the extension of collective bargaining and the development and, where necessary, reform of collective bargaining machinery”.  It is a matter of regret that the Trade Union Reform and Employment Rights Act 1993 removed the duty to encourage the extension of collective bargaining, an activity which has consistently served to improve industrial relations and justice in the workplace.]
  • We would have thought it axiomatic (and a view shared by the DTI) that resolving disputes and improving industrial relations helps businesses raise their performance.  Indeed, that was a key argument in “Routes to Resolution” (leading to dispute resolution law) and in the Government’s consultation on the Information and Consultation Regulations.  We are concerned that the introduction of a test of increasing productivity might distort the proper assessment of the success of the Service and might even impact on ACAS’ funding.  We would urge the Committee to view the Service within its proper context of contributing to improved working relations within the workplace.  ACAS should be judged by whether it succeeds in being a force for good in raising employment standards.

Conciliation in Tribunal claims

  • Our primary contact with ACAS arises in applications to Employment Tribunals, where we act for claimants across the entire spectrum of employment protection jurisdictions.  We believe that ACAS plays an absolutely vital role in providing a truly independent conciliation service in cases whether either or both parties are unrepresented.  Claimants are uniquely vulnerable at a time of great stress in their lives.  For them, ACAS provides a crucial, objective but approachable service that facilitates a just outcome without the stress to the claimant and witnesses from both sides involved in a hearing.
  • It is vital that the conciliation service should continue to be regarded on all sides as impartial and independent.  It is not widely appreciated that ACAS falls under the DTI, let alone that it has been allocated to the “Fair Markets” directorate.  The public perception is that Conciliation Officers are a branch of or allied to the Tribunal system and so independent of Government.  We suggest that this reflects a reasonable and proper expectation that the Service is neutral as between employer and employee.  A policy let alone statutory obligation to promote increased productivity would confuse the issue and put that neutrality at risk.
  • Given the Government’s stated aim in respect of civil justice of encouraging more arbitration and conciliation, ACAS’s unique conciliatory role should be endorsed and confirmed as an adjunct to the Tribunal system rather than an aid to other policies, however worthy.  Conciliation Officers hold the unique power to conclude a binding agreement (the COT3 form) under which the claimant gives up his/her rights to go to a Tribunal – contrast this with a compromise agreement, which must be signed by both parties.  For that reason in particular, Conciliation Officers must retain the status of highly skilled, truly independent “go-betweens” who can concentrate on facilitating settlements rather than second-guessing the impact of their efforts on the employer’s business.  Their status as Crown employees reflects their impartiality and warrants their statutory power and should be retained.
  • We acknowledge that where both claimant and respondent are professionally represented – or at least represented by lawyers – it is often not necessary for ACAS Conciliation Officers to become involved.  Lawyers’ duty to their clients encompasses seeking a satisfactory resolution without the need for a court or tribunal hearing.  It may be asked why the State should provide a service that should be an inherent part of lawyers’ efforts on behalf of their clients.  We do not rule out an arrangement under which the two sides’ (legal) representatives would have the option of requesting ACAS support in special circumstances, perhaps where the case cannot be settled without also resolving an issue of collective employment relations.  We recently had a multi-claimant equality case where the Conciliation Officer facilitated a complex settlement in a series of meetings on ACAS premises.  Indeed, collective, face to face conciliation might occur more frequently were Conciliation Officers to be freed of the frequently fruitless telephone calls to lawyers who should be in contact with their opposite number in any event.  That said, we repeat our strong view that Conciliation Officers must retain an active role where a claimant is not represented at all or is being helped by a family member or a friend.
  • We consider that Conciliation Officers should be entitled to express a view to either side if asked whether a proposed settlement is fair.  Currently, the obligation to conciliate appears to preclude Conciliation Officers from expressing any view where, for example, an employer makes a risible offer to an unrepresented claimant.  The claimant may (mistakenly) rely on ACAS for advice as to the merits of an offer.  While agreeing that Conciliation Officers cannot be expected to provide advice in this way, it surely should be possible for them to express a view that a Tribunal might be likely to award a significantly higher level of compensation.  The same principle should of course apply if a claimant has a wholly unrealistic view of the level of compensation he/she might hope to secure.

Non-conciliation matters

  • We regard it as vital that ACAS retains its role in relation to Codes of Practice.  The DTI is by its nature a creature of changing policy.  At times, Codes of Practice issued by the Secretary of State have lacked the authority of those issued by ACAS.  By contrast, we would point in particular to the recent revision and reissue of the Code of Practice on Disciplinary and Grievance Procedures, a considerable achievement in marrying good workplace practice with the contentious and less than perfect dispute resolution legislation.
  • ACAS must retain and be provided with the resources to pursue its unique aim of promoting good workplace practices without being buffeted by the latest HR fad or Government policy.  Only in this way can the two sides (including and perhaps especially small businesses) receive stable and coherent support in building long-term working relations. ACASCommonsCommitteeJan06