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Consultation on introducing fees in the Employment Tribunals and the Employment Appeal Tribunal – Acas response

This is Acas's response to the Ministry of Justice consultation on introducing fees in the Employment Tribunals and the Employment Appeal Tribunal.

Executive summary

  • Acas (the Advisory, Conciliation and Arbitration Service) welcomes the opportunity to respond to the Ministry of Justice (MoJ) consultation on 'Introducing fees in the Employment Tribunals and the Employment Appeal Tribunal'.
  • Acas provides a conciliation service offering parties the opportunity to reach a settlement in potential and actual employment tribunal claims. In 2022 to 2023 Acas received around 105,000 early conciliation notifications. Of those, over 72,000 notifications were settled, withdrawn or not progressed during the early conciliation period. A further 23,000 notifications were resolved in the period after a tribunal claim was made and before a hearing took place. In total, fewer than one in ten (around 9%) disputes notified to Acas in 2022 to 2023 resulted in an employment tribunal hearing.
  • Acas's response is based on our practical expertise and insights in running our conciliation service, and our conciliation service management data. We also draw on evidence from an evaluation of our early conciliation service and a study into behaviours of claimants who neither settle nor proceed to tribunal, both carried out during the previous period of employment tribunal fees.
  •  A careful approach should be taken to interpreting and using Acas's evidence. The higher levels and more complex structure of the previous fees regime means it should not be assumed the proposed new regime will drive behaviours in the same way as the previous one.
  • Acas agrees with the position in the consultation document that a fees regime should be underpinned by the principles of affordability, proportionality and simplicity. Our response focuses on 4 areas that we recommend should be given further attention:

A. The rationale that fees may incentivise earlier settlement of disputes

  • The consultation document states that a rationale for the proposed fees regime is that it "may incentivise parties to settle their disputes early through ACAS without the need for claims to be brought to an ET". In Acas's view, it is important that this rationale is considered on the basis of robust and carefully interpreted evidence.
  • Acas's conciliation service data does not provide conclusive evidence that tribunal fees influence parties, in general, either towards or away from settlement (or other types of resolution).
  • Acas's research carried out while the previous fees regime was in place reveals that fees were among a broad range of factors that may influence motivations, behaviours and decision-making of claimants who neither settle at early conciliation nor proceed to submit an employment tribunal claim. Influencing factors were multi-faceted and interlinked. It is not possible to determine from our findings the relative influence that fees or other factors may have on encouraging settlements during early conciliation.
  •  Acas recommends that, in assessing the potential impacts of the proposed fees regime on parties' behaviours, the Ministry of Justice considers evidence on a range of relevant decision-points, before and during conciliation, where fees may have an influence on both claimants and respondents.
  • If the proposed fees regime is implemented, Acas recommends the Ministry of Justice commits firmly to review and evaluate it within 2 years of implementation, or earlier if a significant impact on employment tribunal claim volumes is observed. This should include assessing whether the rationale that fees may incentivise early settlements is being met in practice, and whether any such influence may have disproportionate adverse impacts on particular groups of claimants who may either settle at early conciliation, or not make what would have been a valid employment tribunal claim despite not settling at early conciliation, because they may have to pay a fee.

B. Considerations regarding those with low value or non-monetary claims

  • Acas agrees with the Ministry of Justice that, in designing the proposed fees regime, it is important to consider claimants pursuing low value or non-monetary claims. In Acas's view, there are further considerations that we recommend should be taken into account in relation to this group, in assessing both the proportionality of fees and the potential for indirect discrimination.
  • The Ministry of Justice's assessment of the proportionality of the proposed fees focuses on analysis of low value and non-monetary settlements and awards made at tribunal. This should be broadened to include consideration of how fees may influence the decision-making of those claimants who engage in early conciliation but who neither settle nor proceed to tribunal, and of individuals who decide not to make an early conciliation notification.
  • Ahead of making a decision about implementation, Acas recommends the Ministry of Justice considers the composition of the group of claimants and potential claimants with low value or non-monetary claims. If certain protected characteristics are found to be over-represented in this group, it should be assessed whether the proposed fees may present a disproportionate disincentive or barrier to making such claims. The Ministry of Justice should set out how such an assessment has informed its decisions on the design and implementation of the proposed regime.

C. Practical considerations on certain aspects of the proposed fee regimes

  • To support the goal of simplicity in the proposed scheme's design, we recommend the Ministry of Justice ensures that clear and accessible guidance is made available to users and potential users of the employment tribunal system on how the fees regime operates in potentially complex circumstances such as 'multiple claims'.
  • It will also be important to ensure that the application processes for remissions are simple and accessible, so that users who qualify are not unintentionally discouraged from using them.
  • We recommend the Ministry of Justice works with Acas on raising awareness and ensuring smooth user journeys from Acas's services to the tribunal system's administration of fees and remissions.

D. Wider considerations on alleviating pressures on the tribunal system

  • Acas welcomes further policy attention to alleviating pressures on the employment tribunal system and encouraging engagement in conciliation.
  • We note that there are wider issues facing employment tribunal users to which the introduction of fees may not provide a solution. These include significant waiting times for tribunal hearings, the high proportion of unpaid tribunal awards and low awareness of options for enforcing awards.
  • Acas recommends further consideration by the Ministry of Justice of how these issues might be addressed through wider reforms to the tribunal system and more effective enforcement of employment tribunal awards, alongside other measures including increasing awareness and improving enforcement of employment rights and responsibilities.
  • We would welcome discussions with the Ministry of Justice on the role that Acas and our conciliation service can play in this regard.

Our response

1. Acas (the Advisory, Conciliation and Arbitration Service) welcomes the opportunity to respond to the Ministry of Justice (MoJ) consultation on Introducing fees in the Employment Tribunals and the Employment Appeal Tribunal.

2. Acas is a statutory, non-departmental public body with a duty to improve employment relations in Great Britain. Acas has considerable practical experience of employment relations and of the issues that can be experienced by workers and employers across all areas of employment regulation and workplace practice.

3. In carrying out this duty Acas offers a range of services including a national helpline, a website offering guidance and online training in addition to a range of advisory and collective dispute resolution services. Of most relevance for this consultation is the conciliation service we provide, offering parties the opportunity to reach a settlement in potential and actual employment tribunal claims. Acas provides both early conciliation prior to a tribunal claim being made, and a further opportunity for conciliation in the period between notification of an employment tribunal claim and a hearing taking place.

4. In 2022 to 2023 we received around 105,000 early conciliation notifications. Of those, over 72,000 notifications were settled, withdrawn or not progressed during the early conciliation period. A further 23,000 notifications were resolved in the period after a tribunal claim was made and before a hearing took place. In total, fewer than 1 in 10 (around 9%) disputes notified to Acas in 2022 to 2023 resulted in an employment tribunal hearing.

5. Acas's response to this consultation is based on our practical expertise and insights in running our conciliation service, and our conciliation service management data. We also draw on evidence from an evaluation of our early conciliation service and a study exploring the behaviours of claimants who neither settle nor proceed to an employment tribunal, both carried out during the previous fees regime. Annex 2 provides further details of our evidence, including important notes on the need for a careful approach to its interpretation and in using our findings in considering the proposed new fees regime.

6. Acas agrees with the position set out by the Ministry of Justice in its consultation document that a fees regime should be underpinned by the principles of affordability, proportionality and simplicity. Our response below focuses on 4 key areas that we recommend should be given further attention:

  • A. The rationale that fees may incentivise earlier settlement of disputes
  • B. Considerations regarding those with low value or non-monetary employment tribunal claims
  • C. Practical considerations on certain aspects of the proposed fees regime
  • D. Wider considerations on alleviating pressures on the tribunal system

A. The rationale that fees may incentivise earlier settlement of disputes

7. The consultation document states (at paragraphs 13 and 17) that a policy rationale for the proposed fees regime is that it may encourage "[b]etter engagement by parties in ACAS early conciliation" and "may incentivise parties to settle their disputes early through ACAS without the need for claims to be brought to an ET".

8. In Acas's view, it is important that this rationale for the proposal is considered on the basis of robust and carefully interpreted evidence. We note that the consultation document does not make clear whether the rationale regarding the potential influence of fees on settlements is based on existing evidence.

9. Acas welcomes the fact that the consultation, at Question 6, is seeking evidence on "the different factors that affect the decision to make an ET claim". Acas's research evidence shows that tribunal fees may influence a wider range of decisions for both claimants and respondents. These include:

  • a) claimants' initial decisions whether to engage in conciliation by making an early conciliation notification, and decisions not to make an employment tribunal claim where settlement has not been reached (see paras 12 to 17 below)
  • b) respondents' motivations regarding settlement at the stage before the claimant has paid a fee (see paras 18 to 19 below)

10. Relevant data from Acas's conciliation service and findings from Acas's research is provided below. We advise a careful approach is taken to interpreting and using this evidence for the reasons set out in Annex 2. These include differences between the previous and proposed fees regimes, notably the higher levels and more complex structure of the previous fees. It should not be assumed the proposed new regime will drive behaviours in the same way as the previous one. The need for careful interpretation is further underlined by the fact that the Supreme Court's interpretation of Acas's conciliation data and research findings in its 2017 judgment (R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51) differed in significant respects from that presented in the Ministry of Justice's Review of the introduction of Fees in the Employment Tribunal.

The potential influence of fees on parties' motivations and decision-making

11. Acas's conciliation service data does not provide conclusive evidence that the prospect of a tribunal fee influences parties, in general, either towards or away from settlement (or other types of resolution). For example, fluctuations in early conciliation COT3 settlement rates do not demonstrate that these were generally higher during the previous fees regime than since it ended (see Annex 1, table 1).

a) The potential influence of fees on claimants

12. Acas's research on early conciliation decision-making (2017) (see Annex 2 for details) reveals a broad range of factors that may influence the motivations, behaviours and decision-making of claimants who neither settle at early conciliation nor proceed to submit an employment tribunal claim. This research found, moreover, that these claimants' motivations regarding either settlement or making an employment tribunal claim may change (more than once) at different points and for different reasons across the lifespan of their conciliation journey.

13. Employment tribunal fees played one part in this complex dynamic. However, it is not possible to determine from these findings the relative influence that fees or other factors may have on encouraging settlements during early conciliation.

14. For example, these claimants' desired outcomes and intentions towards settlement at the stage of making an early conciliation notification fell on a broad spectrum:

  • some claimants at this stage preferred to settle and avoid a tribunal but had not completely ruled out making an employment tribunal claim if they did not achieve a settlement. In some such cases, employment tribunals were viewed as a last resort due to concerns about legal fees and stress, particularly among claimants with existing health concerns. In other cases, claimants preferred to settle due to concerns about not getting a reference, losing their job, negative impacts on their health, or due to doubts over the strength of their case
  • another group of claimants at the notification stage had ruled out going to employment tribunal even if they did not achieve the desired settlement. These included some claimants who said they could not afford to pay the employment tribunal fees despite wanting to go to employment tribunal, while others considered the trade-off between tribunal costs and the small financial gains of their case
  • other claimants actively intended, at this initial stage, to take their employers to employment tribunal to gain justice

15. More broadly, across the whole early conciliation journey, financial factors, comprising tribunal fees and wider potential costs (of legal advice or representation, and the cost of reimbursing employers' employment tribunal fees or legal fees if claimants lose at tribunal) were found to play a strong and widespread role in these claimants' decision-making not to make an employment tribunal claim. These financial considerations were compounded by non-financial reasons – especially:

  • a lack of confidence in a positive outcome at employment tribunal
  • the emotional and mental health and wellbeing of claimants at the point of conciliation, and their foreseen health and wellbeing as a result of going through a tribunal process
  • concerns over the time and "hassle" of the tribunal process
  • non-engagement or antagonistic behaviour of employers
  • perceived weaknesses in a case, for example lack of evidence, or running out of time to submit a claim
  • perceived negative career impacts
  • perceived lack of support from Acas, legal advisers and trade unions

16. Influencing factors were multi-faceted, interlinked and could combine to shape claimants' decisions. For instance, if a claimant thought they were less likely to win, they were more concerned about financial risks and emotional impacts.

17. This research also found that fees may have an influence on decision-making prior to engagement in conciliation, i.e. on decisions as to whether to submit an early conciliation notification to Acas. Although all claimants participating in the research had submitted a notification, a range of potential barriers to notification, including fees, were identified. These included:

  • costs (financial and non-financial) such as tribunal fees, legal support, and the stress of a tribunal process – in some cases exacerbated by financial pressures such as unemployment and supporting children
  • wanting to avoid the issue escalating, to avoid bad feeling or confrontation, particularly if claimants were still working for their employer
  • worries about future employment prospects
  • doubts over strengths of the case
b) The potential influence of fees on respondents

18. Acas notes that the Ministry of Justice's consultation document does not appear to consider the potential influence of fees on respondents' decision-making in early conciliation. While the consultation document states that fees "may incentivise parties to settle their disputes early", it is difficult to envisage that the prospect of the claimant having to pay a fee at the end of early conciliation would influence respondents towards settlement at that stage. On the contrary, the Ministry of Justice's Review of the introduction of Fees in the Employment Tribunal (2017) reported (at paragraph 167) that: "Anecdotally, some commentators said that they believed that some employers were taking a harder approach to disputes, and were delaying any negotiations to see whether the claimant would be prepared to pay the fee."

19. Evidence on this in the 2015 Evaluation of Acas Early Conciliation (see Annex 2 for details) was mixed. Employers were found in qualitative interviews to view fees "as a way to test claimants' intention and ultimately reduce the number of [perceived] 'unnecessary' claims", although only 2 among 1,255 employers (and their representatives) surveyed in the main, quantitative part of the evaluation stated that their reason for not participating in early conciliation was that they "wanted to see if [the] claimant was serious about going to an employment tribunal".

Recommendations

20. Given the complexity suggested by our research findings on the potential influence of fees on parties' motivations, behaviours and decision-making, Acas recommends that, in assessing the potential impacts of the proposed fees regime, the Ministry of Justice considers evidence on a range of relevant decision-points, before and during conciliation, where fees may have an influence on both claimants and respondents. This should include all the areas of potential influence outlined above and discussed more fully in Acas's research reports.

21. We note that the consultation document states (at paragraph 60) that, while the intention is not to impact employment tribunal case volumes through these proposals, "it is difficult to know how the introduction of a fee, along with other factors, could affect the volume of applications to the ET." Although the Ministry of Justice states (at paragraph 29) that it "endeavours to regularly assess the developing costs of the courts and tribunals and review the fees that users pay", Acas recommends that, if the proposed fees regime is implemented, the Ministry of Justice commits firmly to review and evaluate it within 2 years of implementation, or earlier if a significant impact on employment tribunal claim volumes is observed. This review should include assessing:

  • whether the rationale that fees may incentivise early settlements through Acas is being met
  • whether any such influence may have disproportionate adverse impacts on particular groups of claimants who may be incentivised either to settle at early conciliation, or not to make what would otherwise have been a valid employment tribunal claim despite not settling at early conciliation, because they may have to pay a fee

22. Acas would welcome discussions with the Ministry of Justice about how we could best support such a review and evaluation of fees, including through sharing our conciliation services data, findings from our services evaluations and our programme of policy research.

23. Acas notes that the Department for Business and Trade's Survey of Employment Tribunal Applications (SETA) series provided in-depth evidence relating to the payment of fees and claimants' fee remissions under the previous fees regime. Acas recommends that, to provide further evidence to support a review of fees, the Ministry of Justice works with the Department for Business and Trade to design further surveys in the SETA series to gather targeted evidence relating to post-implementation impacts of the proposed fees regime.

B. Considerations regarding those with low value or non-monetary tribunal claims

24. Acas agrees with the Ministry of Justice's statement (at paragraphs 8 and 57 of the consultation document) that, in designing the proposed fees regime, it is important to consider claimants pursuing low value or non-monetary claims.

25. In Acas's view, there are further considerations that we recommend should be taken into account in relation to this group, in assessing both the proportionality of the proposed fees and the potential for indirect discrimination.

Proportionality of fees

26. The Ministry of Justice's consultation document and its associated Equalities Statement explains how this group has been considered in developing the proportionality of the proposed fee levels:

  • the consultation document references that "the 2013 SETA report showed that of those claimants who were successful in receiving a monetary settlement, 5% of claims settled for £200 or less and 2% of claims settled for £100 or less."
  • the Equalities Statement provides further estimates of the proportions and levels of low value and non-monetary settlements and awards made at tribunal, including an estimate that approximately 10% of cases analysed involved a non-monetary award (paragraphs 6.4 to 6.5)

27. On this basis, the Ministry of Justice states that those in the group seeking low value or non-monetary claims constitute "a small percentage" of claims (Equalities Statement, paragraph 6.4), and concludes that "the proposed level of fee has therefore been set at a low level so as not to render making such low value or non-monetary claims futile" (consultation document, paragraph 57). However, it is not clear from the consultation documentation why, for instance, the proposed fee level is regarded as proportionate for non-monetary claims.

28. In Acas's view, there are further groups that may be relevant to consider here which are not included in the Ministry of Justice's analysis. These include claimants who engage in early conciliation but who neither settle nor proceed to tribunal, and individuals with potential claims who decide not to make an early conciliation notification. In particular, it is important to understand whether and how fees may influence decision-making of such claimants where they have potential low value or non-monetary employment tribunal claims.

29. While caution should be taken in relating findings from research on the previous fees regime to potential impacts of the proposed regime, we note that Acas's 2015 evaluation of early conciliation found that, among claimants (and representatives) who neither settled nor submitted an employment tribunal claim, the most frequently mentioned reason for deciding against submitting an employment tribunal claim was that tribunal fees were off putting. This was reported by one quarter (26%) of such claimants (and their representatives). When asked to elaborate, the most commonly mentioned reasons were: "I could not afford the fee" (68% of this sub-group), "The fee was more than I was prepared to pay" (19%), and "The value of the fee equalled the money I was owed" (9%).

Indirect discrimination

30. Acas notes that, in assessing the potential discriminatory effects of fees, the Ministry of Justice's identification of those at potential risk of indirect discrimination is based on analysis of those groups with protected characteristics that are over-represented among all employment tribunal claimants compared to the UK's working population (Equality Statement, paragraphs 5.6 to 5.13).

31. This analysis identifies that people from a Black, Asian or ethnic minority background, men, those over 45 years of age, and those with a limiting disability are likely to be over-represented in employment tribunal claims (Equalities Statement, paragraph 6.3). On considering the potentially adverse disproportionate impacts of fees on those groups, the analysis concludes that these "are not likely to result in anyone suffering a particular disadvantage" (paragraph 6.6).

32. Acas notes that the analysis presented in the Equalities Statement does not appear to consider the potential over-representation of, or potential disproportionate impacts on, those with protected characteristics specifically within the group of claimants who may seek low value or non-monetary awards. In Acas's view, it is possible that analysing the protected characteristics of such claimants may produce different results than those derived from the Ministry of Justice's analysis of over-represented groups across all employment tribunal claims.

33. The types of employment tribunal claims that may attract low value or non-monetary awards include claims about the right to request flexible working, time off for ante-natal appointments, failure to provide a pay statement, failure to provide a written statement of employment particulars, and entitlement to rest breaks. With regard to the possibility that certain groups with protected characteristics may be over-represented among those who bring these types of claims, we note, for instance, evidence cited in DBT's impact assessment of its proposals to reform the flexible working regulations suggesting that women and young workers are among the groups more likely to make use of the right to request flexible working.

Recommendation

34. Acas recommends that the Ministry of Justice's assessment of the proportionality of the proposed fees should be broadened to include consideration of how fees may influence decision-making of those claimants who engage in early conciliation but neither settle nor proceed to tribunal, and those individuals with potential claims who decide not to make an early conciliation notification, in particular where these have potential low-value or non-monetary employment tribunal claims.

35. In its assessment of potential indirect discriminatory effects of the proposed fees regime, ahead of making a decision about implementation, we recommend the Ministry of Justice specifically considers the composition of the group of claimants and potential claimants with low value or non-monetary claims. If certain protected characteristics are found to be over-represented in this group, it should be assessed whether the proposed fees may present a disproportionate disincentive or barrier to making such claims. The Ministry of Justice should set out how such an assessment has informed its decisions on the design and implementation of the proposed regime.

C. Practical considerations on certain aspects of the proposed fee regime

36. Acas welcomes the Ministry of Justice's proposed principle of simplicity in the design of a fees regime to ensure that parties can make informed decisions based on a clear and transparent fee system.

37. We note, however, that complications may arise in certain circumstances, such as those noted below, which do not appear to have been considered in the proposal set out in the consultation document.

Interim relief

38. An application for interim relief has to be made within 7 days of dismissal. Such claimants can proceed to employment tribunal without using early conciliation and it will often be necessary to arrange a hearing at short notice. In such circumstances, it may be difficult to complete the charging and/or remission procedure before a hearing is due, particularly where an appeal is made against a remission decision.

Multiple claimants

39. The consultation document proposes (at paragraph 33) that: "Where a claim is brought by multiple claimants, the fee would remain at £55 and 'the claimant' would be treated as a single entity. The cost of the fee could therefore be divided among all the claimants involved, as agreed between them."

40. While this proposal may be straightforward in a multiple claim where all claimants are known at the outset and there is a single claimant representative, we note that this will not always be the case. There are a number of potential complications when it comes to dividing the fee in the proposed manner:

  • multiple claims can comprise a mix of individual claimants who may be either unrepresented or have several different representatives, and who may not be aware of each other at the point of submitting their claims
  • individual cases in a multiple claim may be submitted at different times, so that it may not be possible to establish at the outset (when the decision on whether a fee is payable is proposed to be made) how many cases there are and how the fee is to be divided
  • some claimants may settle or withdraw during the progress of a multiple case while others continue with their claims, so that claimants may be added into or taken out of multiples as they progress. Scenarios may arise where those who have divided the fee at the outset may settle or withdraw, while the claimants who join later proceed to tribunal without having paid a fee

Fee remission scheme and Lord Chancellor's Exceptional Power to remit fees

41. The Help With Fees scheme provides that "If one of the group of applicants does not qualify for help with the fee, then the full fee is payable." In cases where it is not known at the point of submitting a claim whether further claimants may join a multiple claim, it is not clear how a decision will be made on eligibility for remission for the claimants who have submitted their claims at that point. If a remission decision cannot be made before the full composition of claimants in a multiple claim is known (in case one of the potential groups may not qualify for a remission), this may in some cases constitute a disincentive to potential claimants who would otherwise qualify for a remission. There may be equalities impacts to consider in respect of any such disincentive.

42. It will also be important to ensure that users and potential users of the employment tribunal system are sufficiently aware of both fees and the availability of remissions. In this regard, Acas notes that the Supreme Court's 2017 judgment found (at paragraphs 43 to 44) that the proportion of claimants receiving remission during the previous fees regime remained "far lower than initially anticipated". Additionally, the judgment noted the Chancellor's Exceptional Power to remit fees had "rarely been exercised".

43. Acas's 2017 research on early conciliation decision-making provided some evidence of low awareness of fee remissions across its sample of interviewees (all claimants who neither settled at early conciliation nor proceeded to employment tribunal; see Annex 2 for details). It also found that claimants who did discuss the possibility of reductions in fees considered the process of applying stressful.

Recommendations

44. The Ministry of Justice should give further consideration to the above issues in designing the proposed fees regime. Acas would welcome discussions with Ministry of Justice officials on practical considerations on these issues.

45. If fees are introduced, the Ministry of Justice should:

  • ensure clear and accessible guidance is made available to users and potential users of the employment tribunal system on how the fees regime operates in potentially complex circumstances such as 'multiple claims'
  • ensure that the application processes for both the fees remission scheme and the Chancellor's Exceptional Power to remit fees are simple and accessible, so that users who qualify are not unintentionally discouraged from using them
  • work with Acas on raising awareness of these options and ensuring smooth user journeys from Acas's services to the tribunal system's administration of both fees and remissions

D. Wider considerations on alleviating pressures on the tribunal system

46. Acas welcomes further policy attention to the issue (as noted at paragraph 13 of the consultation document) of alleviating the pressures that employment tribunals are currently facing, and more broadly to encouraging engagement in conciliation.

47. We note that there are wider issues facing users of the employment tribunal system to which the introduction of fees may not provide a solution. These include, for instance, significant waiting times for tribunal hearings, the high proportion of tribunal awards that are left unpaid by employers (Research on Payment of Tribunal Awards commissioned by the former Department for Business, Innovation and Skills in 2013 found that only 53% of successful claimants surveyed received full or part payment without enforcement action, while 35% had not received any payment at all. The Survey of Employment Tribunal Applications (2018) (SETA 2018) found 72% of claimants said that they had received their tribunal award, compared with 93% of employers who said that the money had been paid.), and low awareness of enforcement options in relation to unpaid awards. (SETA 2018 found that, where money was awarded, if the claimant had not used the Employment tribunal Penalty Enforcement Scheme and did not take any other action to obtain the money, only round one in five claimants (18%) and 12% of employers in these cases said they were aware of the scheme.)

48. In Acas's view, availability of a simple and effective enforcement process for the payment of tribunal awards is important both to ensure the employment tribunal system functions effectively and to promote good employment relations.

49. In our view, greater awareness of enforcement options could lead to higher rates of paid awards. Analysis of factors that may correlate with non-payment of tribunal awards (such as jurisdiction, value of claim, and size of employer) may provide valuable data to help target awareness-raising of enforcement options among both employers and categories of claimants at higher risk of non-payment of their awards. More effective enforcement of tribunal decisions may also impact positively on employers' willingness to engage in conciliation to resolve disputes without a tribunal hearing.

50. Acas emphasises that it is important also to consider solutions to these issues beyond reforms to the tribunal system itself. For example, other factors that may impact tribunal case volumes and waiting times include awareness of employment rights and responsibilities among employers and individuals. Increasing the effectiveness of employment rights enforcement by the relevant enforcement bodies would also help reduce the onus on individuals to seek enforcement of rights through the tribunal system.

Recommendations

51. Acas recommends further consideration by the Ministry of Justice of how changes to the wider regulatory framework around tribunal processes, the enforcement of employment tribunal awards, and greater awareness and enforcement of employment rights, could help address the broader set of pressures facing the tribunal system.

52. We would welcome discussions with the Ministry of Justice on the role that Acas and our conciliation service can play in this regard.

Annex 1: Acas conciliation service data

Table 1: Conciliation case receipts and outcomes by reporting year

  EC case receipts EC COT3 settlement rate EC resolution rate ET case receipts ET COT3 settlement rate ET resolution rate
2012/2013* 22,630 n/a 52% 67,825 45% 72%
2013/2014* 21,762 n/a 57% 40,938 41% 68%
2014/2015 83,423 15% 25% 18,830 50% 73%
2015/2016 92,172 16% 30% 20,074 51% 73%
2016/2017 92,251 24% 38% 18,647 55% 73%
2017/2018 109,364 22% 34% 26,012 58% 74%
2018/2019 132,711 20% 32% 36,531 55% 74%
2019/2020 138,837 17% 26% 40,978 59% 80%
2020/2021 114,533 22% 31% 35,274 58% 79%
2021/2022 90,811 23% 36% 31,198 55% 75%
2022/2023 105,574 22% 37% 32,058 55% 77%
2023/2024** 103,764 23% 9% 32,703 55% 77%

Note: The information in Table 1 comes from Acas's internal management information systems which track the flow and outcomes of conciliation cases.

*In 2012 to 2013 and 2013 to 2014, Acas offered a voluntary pre-claim conciliation service. Early conciliation became mandatory for almost all potential employment tribunal claims from May 2014.

**2023 to 2024 shows projected outcomes for the current reporting year.

Terms used in Table 1

  • EC case receipts – the number of early conciliation notifications Acas received within the reporting year
  • EC COT3 settlement rate – the percentage of early conciliation notifications which resulted in an Acas COT3 settlement
  • EC resolution rate – percentage of early conciliation notifications which resulted in an Acas COT3 settlement between parties, or where parties indicated to Acas that the dispute had been resolved in another way: for example, where parties indicated a private settlement agreement had been agreed, or a dismissed claimant had been reinstated on completion of an appeal, or a payment for unpaid wages had been made without the need for a formal settlement
  • ET case receipts – the number of employment tribunal cases returning to Acas for further conciliation after the submission of an employment tribunal claim following early conciliation
  • ET COT3 settlement rate – percentage of employment tribunal cases which resulted in an Acas COT3 settlement
  • ET resolution rate – percentage of employment tribunal cases which resulted in an Acas COT3 settlement between parties, or where parties indicated to Acas that the dispute had been resolved in another way: for example, where parties indicated a private settlement agreement had been agreed, or a dismissed claimant had been reinstated on completion of an appeal, or a payment for unpaid wages had been made without the need for a formal settlement