Thursday, April 03, 2014

Conciliate early. Conciliate often.

Having overcome the trauma of envelope stuffing for the consultative ballot on the local government pay offer (of which more later) I can snatch some moments to blog – and to consider next week’s launch of the new early conciliation from ACAS.

In many ways there is nothing new about pre-claim conciliation, it has been a sensible (and free) step available to employers and employees for the quarter century that I have been using it (and before).

Asking ACAS to help resolve a dispute keeps the work of dispute resolution in the public sector, saves the employer the £350 plus VAT which solicitors charge to tell workers about the rights which a Compromise Agreement signs away and (for UNISON branch activists) avoids the needless form filling associated with a Compromise Agreement.

As of Sunday however, there will be an added benefit to seeking ACAS involvement – if the act from which a tribunal deadline is calculated (such as dismissal) has already taken place then involving ACAS will “stop the clock” for up to 28 days whilst a conciliated settlement is sought.

By the time you get to this point, a conciliated settlement is almost always going to be in the worker’s interests. Trade unions were not created, and do not exist, to give individuals their “day in court” but to organise, and achieve justice, for workers. (“Almost” always because sometimes we are fighting for principles – but usually we’re fighting for recompense).

Of course a conciliated settlement depends upon a realistic offer from the employer – and so “stopping the clock” on a tribunal deadline can helpfully add to the pressure on the employer for such an offer (particularly by keeping them guessing about whether there will be legal support for an eventual tribunal claim).

A shortcoming of our current (unavoidable) approach to tribunal representation (about which I have blogged before ad nauseam) is that it has become easy for experienced employers to work out when we won’t take a claim all the way, with all that implies for their bargaining position in that case.

With early conciliation, from Sunday, if – when you initiate early conciliation – you are within one month of a tribunal deadline the clock doesn’t simply stop. When it starts again you have 28 days to the deadline (even if you had less than that when conciliation started).

UNISON activists will recognise that this is exactly the same minimum period before a deadline by which we are (now) required to get all papers to our Regional office so that support for a tribunal complaint can be considered. At the worst, early conciliation buys time to get the papers in order.

Much better though is the opportunity to negotiate a settlement on the best possible terms before the lawyers tell you that the case won’t be supported. Remember that the employers get the same cautious advice that we do – and are often more afraid of a tribunal claim than you would think if you relied only upon the cautious advice the worker had received.

Lay activists who know the employer with whom they are negotiating are often best placed to get the best deal for members, better than a paid union employee without that continuing relationship, and better than a lawyer constrained to view each case on its individual legal merits, outside of that continuing relationship.

ACAS early conciliation cannot take us back to the 90s, when we were free to take cases on a pragmatic (rather than legalistic) view – but, properly used and understood by confident lay activists with a broad view of our role, it can empower us to do better for workers than we have been doing for some time.

What UNISON activists need is a network independent of (though not in opposition to) our formal official structures (hidebound as they are) so that we can share our practical experience of early conciliation and how to use it to benefit workers.

Watch this space.

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