Tuesday, July 07, 2015

ACAS Early Conciliation and Trade Union Organising


Above is a link to the page on the website of the Advisory, Conciliation and Arbitration Service (ACAS) where research papers are published. The most recent reviews the first year of (compulsory) "early conciliation" (the new arrangement whereby you can't lodge a tribunal complaint without first initiating a formal ACAS conciliation process.
This review is based upon large scale telephone interviewing of workers and employers using the early conciliation process. I am most interested in what their data can tell us about how trade unions are making use of early conciliation for our members - since, although the process was obviously introduced to put another obstacle in the way of tribunal claimants (and recent case law has shown that the slightest technical error can rule out a subsequent claim), the ability to "go to ACAS" about an issue is obviously something that a decent negotiator could use to some good effect.

‎In all, only 24% of claimants using early conciliation had a representative. This is worrying if it means that three quarters of workers were representing themselves (since someone who represents themselves is represented by a fool) - but that proportion is not so far away from aggregate trade union density in the economy as a whole as to be surprising. (Only 36% of the employers interviewed for this survey reported trade unions as present in their workplace).

Just under half of worker representatives were lawyers, and about a quarter were union officials. However, since (in UNISON at least) we would use a lawyer to deal with such matters, it is likely that a significant proportion of the legal representatives were there as a result of trade union presence.

Around 30% of claimants settled their claim through early conciliation, nine times out of ten for cash (with a median sum of just £1,300). ‎ Fewer than half of claimants (but almost two thirds of employers) were satisfied with the outcome of early conciliation.

A little over half of the claimants who had not arrived at a settlement had submitted, or were planning to submit, a tribunal claim. The largest single reason for not doing so in these circumstances (cited by over a quarter) was the discouraging effect of tribunal fees. Interestingly, three in five of those who were not planning a tribunal claim having failed to achieve a settlement said that ACAS was itself some part of their reason for not doing so.

It is impossible to know whether these 60% were benefiting from honest, unbiased ‎comments on a hopeless case, had gained greater understanding through the process of early conciliation or were consciously being put off - certainly, since one of the key concerns of the ACAS research is (understandably) whether early conciliation is reducing tribunal claims, and since the whole point of the process was to keep workers away from tribunals, it is not surprising to hear that the process is obviously achieving this objective.

What should trade unionists take from this data?

Well, first that we ourselves should be researching the work which we are obviously doing in early conciliation in order to assess its utility for our members and our organising effort.

Individual representation at a tribunal, which is the very essence of a "servicing" approach to trade unionism can show us, as a movement, at our most reactive.

We have reacted to the actions of the legislature over the years, whether that was creating the tribunals, extending their jurisdiction, introducing fees or introducing early conciliation. We have also reacted to soaring professional indemnity premiums by preventing lay (and full-time) officials undertaking tribunal representation, and only taking cases which are likely to win.

It may be time to step back and take a look at what is left of the system for enabling workers to enforce our employment rights, and to consider how to use this to advance union organising. This would require a radical reappraisal of how we currently operate and is therefore unlikely pending a change in leadership. It is, however, necessary.

Sent from my BlackBerry 10 smartphone on the EE network.

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