ACAS by Ruben Murdanaigum

Since the foundation of GEMME by Beatrice Brenneur, and Eric Battistoni, two eminent members of the French and Belgian judiciary, similar thinking persons from within, all corners of Europe have joined them in order to address a perceived problem within the " administration of the law. "

This is in contrast to the term "administration of justice,” which is so often referred to within the legal jurisdictions.

These persons had one thing in common: the realisation that pure application of the law is not necessarily conducive to the proper running of the various societies and communities within which they interact.

Pure application of the law, very often, restricted the judiciary in their dealings with individuals. The needs of the individuals were secondary to the needs of the law. The Justiciary was bound to apply the law and, not more than that.

In the course of the growing up process of GEMME within time, part of its natural evolution was to realise that boundaries could not be applied to the principles that it was constantly endeavouring to develop, apply, and adopt.

Those values, although intrinsic and classical, had to be worked upon in order to fine-tune them with people, places, and time.

This evolution has led to the consideration that a universal application of these in gathered values should be represented through one body with no boundaries. Each member of the body would bring its own wealth of knowledge in order to enrich the body in question, hence the decision to form CIMJ.

Robert Louis Stevenson indicated that to travel hopefully is a better thing than to arrive.

In the case of CIMJ, what the organisers have created is a vessel that allows its members to travel hopefully. It will be a travel in time and space. It is not known whether there will ever be an arrival. There has been embarkation. There is hope Therefore, on we go!

THE ACAS EXPERIENCE.

This experience applies only to employment law and not to other aspects of the United Kingdom law.

I must, however, make it clear that although ACAS is a United Kingdom creation, functioning within England, Wales, Northern Ireland and Scotland, my own experience of its practices apply only to Scotland although on some occasions I have had cause to deal with their headquarters in England.

The British experience, insofar as avoidance of the court system and judges is embodied within the organisation known as ACAS.

ACAS stands for "Advisory, Conciliation and Arbitration Service.”

ACAS is a British creature known as a QUANGO.

A QUANGO is a "Quasi Non-Autonomous Governmental Organisation.” Though financed by the British government, they act independently of it.

ACAS, therefore, is an independent, non-departmental, publicly funded body, which is intended to be at arm 's length from the United Kingdom government. Its membership comprises (usually ex-), employers and trade union representatives, operating under the auspices of an independent chairperson.

HISTORY:

ACAS goes back to 1896, when the British government, set up a voluntary conciliation and arbitration service. It gave free advice to employers and unions on industrial relations and personnel problems. It was set up with an independent Council to direct it.

The word "Advisory" was added in 1975 to reflect the full range of services offered. It was put on a statutory footing in 1976, and receives its funding from the United Kingdom Government.

The most important change to its functions came into effect on 6 April 2009, when it extended its helpline service and published a new Code of Practice on disciplinary and grievance procedures.

The emphasis of ACAS is to help businesses, preventing problems before they arise. Their message is that "Prevention is better than cure.”

ACAS state that they give advice and guidance to callers via their telephone helpline and they promote good practice at training sessions that they run. They work with individual companies, in partnership with employer/employee/trade union groups to find lasting solutions for their workplaces.

It seeks, by way of conciliation, arbitration and mediation, to prevent and resolve disputes between employers and their workforces; to provide collective conciliation and mediation in disputes between unions and employers and other issues such as wages and employment conditions. It has other wide-ranging remits, in terms of the employment law.

THE ACAS CODE OF PRACTICE

The ACAS Code of Practice on disciplinary and grievance procedures applies to the workplace dispute resolution framework, which came into operation on 6 April 2009. The Code provides basic practical guidance to employers, employees and their representatives and sets out principles for handling disciplinary and grievance situation in the workplace.

A failure to follow the Code does not; in itself make a person or organisation liable to proceedings. However, Employment Tribunals will take the Code into account when considering relevant cases.

Tribunals will also be able to adjust any awards made in relevant cases by up to 25% in reasonable failure to comply with any provision of the Code.

The Employment Act 2008 provides that "if it appears to the employment tribunal that the employer has failed to comply with the Code and that that failure was unreasonable, the employment tribunal may , if it considers it just and equitable in all the circumstances to do so, increasing the award it makes to the employee by no more than 25%.

The Act also provides that "if it appears to the employment tribunal that the employee has failed to comply with the Code and that failure was unreasonable, the tribunal may, if it considers it just and equitable in all the circumstances to do so, reducing the award it makes to the employee by no more than 25%.

The Code gives mediation a much higher profile. It takes people back to using guidelines and encourages mediation. It makes organisations and individuals more aware of mediation.

It allows grievances to be dealt with earlier through mediation, hence the saying "Prevention is better than cure."

The Code sets out five key elements of fairness, being that:

(1) Matters should be raised and dealt with promptly.
(2) Parties should act consistently.
(3) Employers should carry out the necessary investigations to establish the relevant facts.
(4) Employers should inform employees of the basis of the problem and allow the employee to put the case
and
(5) Employees should be allowed to be accompanied in a formal disciplinary or grievance meeting.

The expectation is that the Code would enable parties to settle their differences at a very early stage, thereby avoiding the necessity of following legal processes within the court system.

Should both parties not reach a settlement via mediation, then, the most appropriate issue open to them would be to initiate legal proceedings in the tribunal system.

Even then, in order to avoid the courts, statutory provisions are made for both parties to revert to ACAS before, at and during the stages of proceedings within the court system.

ACAS, now, has a statutory power to offer such services as mediation and conciliation at and during court proceedings.

The Code of Practice is a form of dispute resolution that affects all individuals, whether employee or employer. The Code sets out basic minimum standards for both parties to resolve the dispute in the workplace.

CONCLUSION

This is an overview of the activities of a body, which is very proactive, within our legal system.

It has been said that lawyers in private practice are unwilling to adopt ADR. There is a fear of loss of income. Insofar as our involvement with ACAS is concerned, the experience has been a positive one. Lawyers involved with employers and employees, and with ACAS, have all taken part in the system of mediation, operated by the officers of ACAS.

ACAS always approach the parties through their lawyers. Every step of their dealings is always through the lawyers. There had been no reason for work being taken away from the lawyers. ACAS, employers and employees and their respective lawyers play a very active part in the process of mediation.

If a case is referred to an employment tribunal, then, the matter is sent to ACAS, and one of its conciliators will contact the parties or their representatives to discuss the claim and explore the potential for settlement. There is no time limit for ACAS to mediate between the parties from the time of the claim being submitted to the tribunal hearing taking place.

ACAS may also be involved at this stage, where a claim has not been lodged with the tribunal. This is where, for example, an employee is likely to make a claim against an employer. In this case, ACAS, would mediate between the parties and should an agreement be reached, then, this matter cannot be raised again at a tribunal.

At all levels, if lawyers are involved, ACAS will not bypass them. They all play an active part with their respective clients in trying to settle the matter.

Having spoken about members forming the body, the example of ACAS is one of dedicated individuals playing an active part in trying to make parties reach agreements rather than fighting it out in court, where the judge has no option but to apply the law. It appears to be an embodiment of flexibility, replacing rigidity.

Societies evolve and change. The principles flowing through GEMME and CIMJ are on their travelling course. The humans involved in it are the time travellers. I am happy to be part of it.

When Beatrice Brenneur and Eric Battistoni started GEMME and continued with CIMJ, the sayings of Gandhi was surely with them, in that "First they ignore you, then they laugh at you, then they fight you, then you win."

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