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Clinical Negligence: The power of saying sorry
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Early Conciliation has been available since 6 April 2014, and engaging the system has been compulsory since 6 May 2014. How has the system been fairing so far?
From an Acas perspective, very well, according to Noel Lambert, Head of Individual Dispute Resolution Policy at Acas in his report to the ET National User Group meeting on 1 July. In summary, Acas believe there are no major structural difficulties with the new system, although some very interesting issues are emerging. Examples include the following:
- What to do when an employee phones up when they are part way through an appeal or a grievance process, and asks Acas to intervene on his/her behalf? This raises the obvious difficulty that Acas has always advised that such an individual needs to try and sort matters out within the workplace, before going “external”. And if Early Conciliation is engaged early, how can the parties benefit fully from the “stop the clock” mechanism and the discretionary two week extension?
- More seriously, what position is Acas in if an employee calls up and says they are not really intending to bring a claim, but asks the Conciliator if they can try and negotiate something for them with their employer”? Of course, it is not always as overt as that, but it does highlight the need for Acas to be clear that they do not act on anyone’s behalf. Furthermore, Acas is publicly funded, which raises the wider question of the extent to which it is right for them to be expending resource on seeking to “conciliate”, where, for example, it quickly becomes clear that the employee does not have the requisite service, or is very late or too late in presenting his/her claim.
For me there are a number of other important questions that need to be answered. One of the questions we are frequently asked by clients in relation to Acas Conciliation Officers, is “how good are they”? In the past it has been said that the quality of Acas Officers has been variable. Never has this issue been more important, because if word goes round that Acas Officers are “not up to much”, no one is going to take the system very seriously. On the other hand if the quality is high, the reverse may be the case. One idea is to ensure that feedback is taken either in a sample, or otherwise in all cases, at the conclusion of the conciliation process. Doubtless views will to some extent be coloured by the outcome from the perspective of the person giving the feedback, but nonetheless, their views would be valuable. (It should be noted that Acas are planning to commence a full evaluation of Early Conciliation so that they can have a “systematic” assessment, as well as an “anecdotal” feedback one. This is obviously a sensible course.)
It also seems to me that we should be bearing in mind we are living in quite an artificial environment right now. As with interest rates, where everyone knows that the era of these being “low” must be coming to an end pretty soon, so, arguably with fees (except that they are currently “high” rather than “low”). The Government has now confirmed its commitment to conducting a review. There are only three potential outcomes. Fees may be kept where they are, they could be abolished altogether, or they could be retained, but at a lower rate. If I was a betting man I would put quite a lot of money on the last of the three. That means Acas must anticipate there will in due course be more litigants engaging the Early Conciliation process prior to instituting proceedings, and these may be more numerous than those who are currently engaging Acas because they cannot afford fees and are hoping to ride on the back of a free service to see if they can secure a settlement “on the cheap” in that way.
One of the issues that was considered sensitive in the run up to Early Conciliation, was the extent to which Acas Officers may find themselves not merely giving “information” to potential litigants, but “advice”. It has always seemed to me that there is a very thin line between the two, and there may be more than a little criss crossing by the Acas Officer if they are not constantly alive to the issue. Only recently we had in this office a case of an Acas Officer giving a potential employee the wrong “steer” in terms of when the limitation period would start. The date was wrong by quite a few days, which could have been very dangerous if relied upon.
These are challenging, but heady times for Acas. There are bound to be teething problems as the new system beds in. I understand Acas will be producing quarterly statistics (the first will be available later in July) to chart progress as the process develops. In order to advise our clients properly, we now need to understand much more than we ever did, about how the Acas conciliation process works, and how that can potentially affect the interests of our litigant clients. But nothing I have seen thus far indicates to me that Acas will not be having a really useful role to perform in the new employment dispute resolution environment. Certainly it seems to me that Acas is not being ignored, as some commentators thought might be the case when the new scheme was first talked about.
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