ADR in practice: Pre-Claim Conciliation – 2 years on

ADR in practice: Pre-Claim Conciliation – 2 years on Barbara Davey Senior Research Officer Research and Evaluation Acas Effective Conflict Management Seminar 8 March 2011

Outline of presentation
Acas response to Gibbons - PCC
Pre-Claim Conciliation – how it works
Monitoring take-up and outcomes
Evaluating effectiveness
Customer perceptions
Questions
The challenges – the conciliator story

Acas response: Pre-Claim Conciliation
From ‘non-ET1s’ to (pro-)active promotion of early dispute resolution in potential ET claims
2008 – pilot carried out in 3 Acas regions
more conciliators
additional training and development for helpline advisers and conciliators
Profile raising among reps, CAB and TUs

PRE-CLAIM CONCILIATION – things don’t have to get ugly!

PCC – Objectives
encourage earlier and speedier resolution of disputes with positive employment relations outcomes
reduce admin burden and produce time and cost savings for employers, employees and the state
positive customer experience

Pre-claim conciliation How does it work?

PCC – how does it work?
Acas helpline adviser
Is caller eligible for PCC?
Employer not insolvent
Eligible to claim (jurisdictions/time limits)
Efforts to resolve
Intention to claim
Outlines PCC service – offers to refer
Refers to conciliator

PCC – how does it work?
Acas Conciliator
Contacts employee
Is PCC Referral appropriate?
Proceed?
Contacts employer
Proceed?
Attempts to settle

Pre-claim conciliation Monitoring take up and outcomes

What is the take-up?
PCC Referrals
First year 2009/10 9,758
Second year April-Dec 2010 12,482
Source: Acas MI Data

How many are resolved?
Target 40% appropriate referrals resolved
First year 2009/10
39% of appropriate referrals
Second year Apr-Dec 2010
almost 50% of appropriate referrals

Reduce ET claims?
Complex
ET claims affected by many factors
e.g. recession in first year of PCC (UD 46% 2009/10 cf 40% 2008/09)
Can track referrals 3 months after case closed
ET avoidance rate - target 70%
77% of appropriate referrals-no claim had been submitted (April-December 2010)

Pre-claim conciliation: evaluating effectiveness

Evaluation criteria
‘ easily accessible, speedy, informal and inexpensive’?
Donovan Commission report 1968
ET claims
Survey of Employment Tribunal applications (SETA)2008 BMRB
4027 employers/employees in closed cases Feb’07-Jan’08
Pre-Claim Conciliation
Evaluation of the first year of Acas’ Pre-Claim Conciliation service – ORC
1188 parties (employees, employers, reps) in closed cases April-Dec ‘09

Easily accessible? workplaces
Compared to ET cases:
< public sector (12% cf 19%)
< large workplaces (250+) (13% cf 19%)
< internal HR depts (55% cf 62%)
> Smaller private sector workplaces without an internal HR
Source: Evaluation of the first year of Acas’ Pre-Claim Conciliation service 2010
Survey of Employment Tribunal applications (SETA) 2008

Easily accessible? employees
< Trade Union members (10% cf 25%)
< long-standing illness/disability (13% cf 22%)
< BME (indicative) (6% cf 12%)

Easily accessible? type of dispute
< Discrimination
= Unfair Dismissal
> Monetary, eg. Wages Act, Redundancy
Preserving employment relationship?
Source: Acas MI data – April – December 2010

Informal?
ET - need for a representative
Increasing legalism/complexity of case law
Unrep’d claimants in complex cases disadvantaged
Representation - ET cases
Nominated ET form ( 32% claimants, 54% employers )
Used on day-to-day basis ( 46% claimants, 60% employers)
PCC
9% represented (10% employees, 6% employers)

Speedy?
Time spent by employers and employees (median)
Employees
7 days ET claim
>6 days if settled by Acas, >8 days ET hearing
6 hours on PCC case
Employers
5 days ET claim
5 days if settled by Acas, 7.5 days ET hearing
1 day on PCC case

Inexpensive?
Less time, less representation, less admin
Costs calculated by BIS economists with Acas
Employers
Resolving a claim through PCC : £475
Dealing with submission of ET claim: £5684
Employees
Resolving a claim through PCC: £78
Dealing with submission of ET claim: £2928
Included data from SETA 2008, PCC 2010, Acas MI and ASHE 2010

Pre-claim conciliation Customer perceptions

Customer satisfaction
PCC Outcome (59% employees, 71% employers)
ET Outcome (SETA) (59% employees, 69% employers)
PCC Conciliation (80% employees, 83% employers)
Acas service (SETA) (77% employees, 79% employers)
ET system (SETA) (74% employees, 65% employers)
Would use PCC again (85% employees, 91% employers)

Why employers decline PCC
Formal legal representation in place
Wanted to resolve without third party assistance
Not sure what PCC can offer
‘ Wait and see’
Would not settle outside the tribunal system
No case to answer

Pre-claim conciliation Customer experience Summary

Summary
Take-up increasing and targets met/exceeded in resolving referrals
Evidence of avoiding ET claims – need further examination of impact on ET claim volumes
PCC faster, cheaper, and more informal than ET process
Customers satisfied with PCC - particularly employers

Summary
Accessible?
fewer public sector but more smaller businesses no HR
fewer TU members?
fewer long-term ill/disability and BME?
fewer discrimination cases?
Challenges:
Preserving employment relationship
Persuading employers to participate

Pre-claim conciliation Any questions?..... Any questions?

Pre-claim conciliation Customer experience Overcoming challenges: the conciliator story

Conciliator story : Focus groups
Two main challenges:
Absence of initial paperwork
Cold calling the employer

Employment Tribunal cases- conciliation
ET1 and ET3 forms outlining the claim
time and space between submission of claim and speaking to conciliator
PCC
immediate
conciliator absorb/sort great deal of information
callers often highly emotional
want to off-load, discuss issues in-depth

“ They are the same people obviously but when you get an employment tribunal case there’s a distance. They’ve had to think about their claim, put it on an ET1 and by the time you get the ET1 it’s been a further two or three weeks, they’ve processed it a lot more and are more settled about what they want to do about it. With the helpline referral (for PCC) they’re a lot more stressed about the issues” (conciliator)
Conciliator:
more direct
continually questioning and focusing the employee

Cold calling employers
Employment Tribunal cases – conciliation
employer is aware of ET claim
PCC
often first time employer heard that employee is thinking of submitting a claim
sometimes managing emotions of employer
We have to break the news that someone is thinking of claiming against them so it can be quite tricky to manoeuvre round that and it can be really difficult…” ( conciliator)

Employment Tribunal cases – conciliation
build rapport over number of contacts
PCC
have to engage the employer in the initial phone call
“ things are won or lost in the first couple of conversations” (conciliator) .

Employment Tribunal cases - conciliation
Straight to conciliation process
PCC
Can we talk?
Priority – make it clear who Acas is
Strongly convey Acas’ impartiality
Keep language neutral
Pace of information crucial

Skills/tactics:
Employee called helpline because they are unhappy
Highlight that employee wants to resolve the issue
Highlight benefits of early dispute resolution
Invite employers to tell them how case is weak

PCC Outcomes
Earlier intervention chance for non-monetary outcomes and stops parties getting entrenched:
“… often it’s other things that they’re looking for, like a reference or apology or something to make the situation right” (conciliator)
Some incidents of re-instatement

And finally….
“ I think the beauty of PCC is we’re resolving it quickly” (conciliator)

Sources:
Pre-Claim Conciliation
Acas Management Information
Evaluation of the first year of Acas’ Pre-Claim Conciliation service - ORC
1188 parties in closed cases April-Dec 2009 (37% rr)
13 qualitative interviews unprogressed cases
5 qualitative interviews – resolved cases
Individual conciliation in ET claims
Acas Management Information
Acas Individual Conciliation customer survey ORC forthcoming
2336 parties in closed cases Jan-Mar 2010 (39% rr)
ET claims
Survey of Employment Tribunal applications(SETA)2008 BMRB
4027 parties in closed cases Feb’07-Jan’08 (62% rr)

ADR in practice: Pre-Claim Conciliation – 2 years on

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ADR in practice: Pre-Claim Conciliation – 2 years on Presentation Transcript