Advisory, Conciliation and Arbitration Service (Acas)

6. Mr H complains about the following aspects of the service he received from ACAS. He complains:

• ACAS failed to acknowledge fundamental procedural errors in its conciliation process • the complaint response from ACAS was contradictory, as it stated it relied on a specific email from Mr H for confirmation of understanding, but another response said it had not relied on this email • ACAS did not consider Mr H’s attention deficit hyperactivity disorder (ADHD), as well as him representing himself in the conciliation process.

7. Mr H says ACAS’s procedural errors forced him to pursue the legal route through an Employment Tribunal. He says these procedural errors deprived him of the ability to negotiate fairly and effectively at a critical stage. He says this forced him to deal with the consequences of a process he believes was unfair and mishandled.

8. Mr H says this has caused him a lot of stress, disadvantaged him and prejudiced his position. He says all this could have been avoided had ACAS not acted in the way that it did. Mr H says the contradictions in ACAS’s complaint responses undermines the clarity and consistency of its final decision of issuing the COT3.

9. Mr H has ADHD and represented himself during this process. He says navigating complex legal procedures has been made even harder by ACAS’s lack of consideration, and it impacted his ability to focus on the main aspects of his claim. He says this has also caused him considerable stress and anxiety. Overall, he says ACAS’s actions have undermined his trust in the service.

10. As an outcome to the complaint, Mr H would like an apology, acknowledgement of failings, service improvements, and a financial remedy.

11. This is a brief background to place the key events to this complaint in context. It does not provide a full account of everything that happened.

12. For context, early conciliation is a legal process whereby an ACAS conciliator helps employers and employees resolve workplace disputes before a claim is lodged with an Employment Tribunal. Once an agreement between both parties is reached, ACAS will write up what is agreed in a conciliation agreement (COT3). This is a legally binding agreement.

13. Mr H was the claimant, and his previous employer was the respondent in this dispute.

14. On 30 April 2025, ACAS received an email from Mr H outlining what he would be prepared to settle for as part of the conciliation process. Mr H gave ACAS consent to share this with the respondent. Further communication between Mr H, ACAS and the respondent took place as there were some further clarifications and questions between the parties.

15. ACAS sent Mr H an email on 30 April 2025 at 4.05pm containing the draft COT3 agreement and the respondent’s position. This email contained the following wording:

• ‘This is a draft, not the final agreement. Please do not sign this draft or take any action listed in any clause until the agreement is confirmed by ACAS as binding …

• Important – if [ACAS] is advised that offered terms are accepted, either by phone or email, they become legally binding, and the matter is resolved. [ACAS] would then create and send the COT3 agreement and covering letter.

• Settlement is not reached until you both agree the terms. [We] have asked the Respondent Representative to confirm to ACAS when their client confirms agreement to the draft COT3. There is no ‘cooling off period’.

16. Mr H responded to this email at 4.21pm from ACAS shortly after seeking clarification and amendment on a specific issue. ACAS forwarded this onto the respondent, and the respondent replied to ACAS, with Mr H included in this reply. This response sent at 5.45pm with revised terms. ACAS explained this is outside normal ACAS working hours.

17. Mr H emailed the respondent’s representative, including ACAS in the email, at 6.17 pm saying the following:

‘Without prejudice and subject to contract – Thank you for the revised COT3 agreement. I confirm that the updated settlement terms are agreed from my side. Please proceed to obtain final sign off from the Respondent and instruct ACAS to issue the final binding documentation’.

18. The next day at 8.32am, ACAS sent an email to Mr H and the respondent. ACAS were waiting for the respondent to confirm the updated settlement terms. Approximately an hour and a half later, the respondent’s representative replied to Mr H, including ACAS, advising that the respondent agreed with the settlement.

19. ACAS confirmed that as there was agreement with both parties to the draft COT3 wording, it would declare the COT3 legally binding.

20. At 6.17pm, Mr H emailed the respondent’s representative and confirmed ‘that the update settlement terms are agreed’ from his side. The next day, ACAS emailed both parties the COT3 agreement.

21. Mr H submitted a formal complaint to ACAS on 6 May.

Procedural errors

24. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. Having done this, we have not seen any indication that something has gone wrong here. We have explained why below.

25. Mr H complains ACAS failed to acknowledge fundamental procedural errors in its conciliation process. He says ACAS prematurely declared the COT3 binding without preparing and issuing its own COT3 document for his review and approval. He says he used the term ‘without prejudice and subject to contract’ in his communication to indicate this was not a binding agreement.

26. In its response to Mr H’s complaint, ACAS explained that Mr H confirmed his agreement to the terms of a settlement in an email on 30 April 2025 at 6.17pm. The respondent confirmed their agreement at 9.56am on 1 May, and following this, ACAS issued a COT3 agreement. It said a further email sent at 11.59am on 1 May also confirmed Mr H’s understanding that an agreement had been reached. ACAS explained that once it records a COT3, it does not have the authority to revoke or alter it, unless both parties consent in doing so.

27. Our Principles say organisations should aim to ensure people are clear about their entitlements, about what they can and cannot expect from the public body and about their own responsibilities. It also says organisations should be open and truthful when accounting for their decisions and actions.

28. ACAS provided us with further internal information which expands on the conciliation guidance on its website. It says it is important that all parties understand at what point a settlement becomes legally binding to prevent any challenges later. For this reason, all offers, counteroffers, and especially those dealing with consideration only should be caveated as ‘subject to terms’. This means that although the consideration element may have been agreed, there is still wording to finalise.

29. ACAS explain that conciliators should always make sure offers are accepted explicitly since the general rule is there needs to be some positive acts of acceptance.

30. ACAS’s wording in its 30 April 2025, 4.05pm email is clear in when parties reach a settlement. Namely that settlement is not reached until both parties agree the terms, to which then it becomes legally binding.

31. This is in line with our Principles in that ACAS had clearly ensured both parties are clear about the process. This is also in line with the conciliation guidance.

32. Following clarification and amendments of the draft COT3 wording, Mr H’s email of 6.17pm does appear that he accepts the terms of the settlement. He says ‘I confirm that the updated settlement terms are agreed from my side. Please proceed to obtain final sign off from the Respondent and instruct ACAS to issue the final binding documentation’. This wording seems to be a positive acceptance of the terms.

33. Mr H did use ‘subject to contract’ in this email. In its response to Mr H’s complaint, ACAS explained that using this term during negotiations allows parties to exchange draft versions of the terms without inadvertently becoming bound to a settlement in the process. Mr H’s email did not include any revised terms of outstanding issues he later outlined, nor did it indicate any disagreement with the terms set out. This is further explained in its conciliation guidance as outlined in paragraph 28.

34. ACAS’s actions here appear to be in line with its conciliation guidance and our Principles. It followed the guidance as to when it would consider a settlement to be legally binding. This was based on Mr H’s and the respondent’s clear acceptance of the terms. ACAS also provided these explanations in its response to Mr H’s complaint in being open when accounting for its decision and actions here.

35. We think there are no indications of failings here. ACAS appear to have acted in line with its conciliation guidance and our Principles. We recognise Mr H has a different view here and believes the process was not fair. We hope our explanations here reassure Mr H that ACAS appears to have followed the correct process

ADHD

36. Mr H complains ACAS did not consider his ADHD, as well as him representing himself, in the conciliation process. He says this was despite ACAS being aware of his disability.

37. ACAS said it understands how ADHD can affect how individuals process complex information and decision-making in certain conditions. It said the available evidence showed Mr H was in control of when and how he engaged with the process, there were no procedural barriers imposed by ACAS, and time and space were provided when requested. ACAS also noted that Mr H had access to legal support in the background during the process.

38. The reasonable adjustment guidance sets out what ACAS should do here. It says that if a disability has been made known via the notification form or tribunal claim forms, the conciliator should discuss with the individual the appropriate way for the service to be delivered. It continues to say that discussions around reasonable adjustments should be detailed in the case notes, and any difficulties and agreements described.

39. In the evidence ACAS has sent us, we can see that it noted at some point in 2024 that Mr H ‘may be neuro-diverse’. However, we cannot see any further information clarifying or confirming this, or what this meant for ACAS in communicating with Mr H.

40. In the case notes of Mr H’s dispute with the respondent, it details the communication ACAS received from Mr H, and communication ACAS was copied into between Mr H and the respondent (or representative). From the information made available to us, we can see that part of the dispute between Mr H and the respondent was regarding a reasonable adjustment request for his ADHD. We do not know what this request was as the conciliation process is confidential.

41. From the correspondence available to us, we cannot see Mr H requested ACAS to make reasonable adjustments during the conciliation process. The first mention we can see of Mr H mentioning to ACAS how his ADHD affects him is in an email on 1 May at 12.32pm. He says his ADHD affects his ‘ability to recall and evaluate all past communications with certainty’. This was after ACAS wrote up the legally binding agreement (COT3).

42. Following escalation of this matter, as well as Mr H’s complaint about the conciliation processes, Mr H provided ACAS with further explanations. He explained that his request for an adjustment to a clause in the settlement (relating to a reasonable adjustment), is something that ACAS is ‘obliged to consider’. Mr H requested ACAS to give ‘proper consideration’ to his reasonable adjustment under the Equality Act 2010.

43. We understand that having ADHD can affect someone’s ability to communicate and in processing and organising their thoughts. This affected Mr H as outlined in paragraph 41. We also understand that going through a process like early conciliation can be challenging and stressful.

44. ACAS’ own guidance for employers on reasonable adjustments acknowledges that some disabled people might not need or want adjustments, although this can change over time. This is because reasonable adjustments can be different depending on the situation.

45. We think ACAS would have been aware of the reasonable adjustment aspect of Mr H’s claim. In the absence of a formal request, or an obvious difficulty arising, we would not expect ACAS to have assumed Mr H would automatically have needed reasonable adjustments to engage with its service. This is particularly the case when ACAS had understood Mr H had access to legal support.

46. Based on the evidence we have, we cannot say ACAS did not act in line with its reasonable adjustment guidance. This is because Mr H did not ask ACAS to consider any reasonable adjustments he needed to participate in the early conciliation process. We have seen no example of an obvious difficulty arising, or of Mr H referring to such a difficulty, which would suggest ACAS needed to ask about this.

47. As such, ACAS did not have the opportunity to consider what it could do. We will not be taking this part of Mr H’s complaint forward. We do not wish to diminish the impact Mr H’s ADHD had on him during early conciliation process. We recognise how difficult this experience was for Mr H. We also have to be fair to ACAS in that it did not have the opportunity to consider any reasonable adjustment requests.

Complaint responses

48. Mr H complains about the contradictions in the complaint responses from ACAS. He says ACAS initially stated that it relied on a specific email from Mr H for confirmation of understanding, but it then said in another response it had not relied on this email.

49. Our Complaint Standards says organisations should give a clear and balanced account of what happened, based on established facts.

50. In ACAS’s first response to Mr H’s complaint, it explained Mr H had confirmed agreement to the terms on 30 April at 6.17pm. We have outlined the contents of this email in paragraph 17 of this statement. The respondent’s representative confirmed their agreement at 9.56am on 1 May, following which ACAS then issued the COT3 agreement.

51. Following its issue of the COT3 agreement, ACAS said Mr H’s email of 11.59am of 1 May further confirmed Mr H’s own understanding that agreement had been reached. This email contained the following wording, ‘Thank you for forwarding the legally binding COT3 documents regarding my settlement…’

52. Mr H challenged this as part of his complaint to ACAS. ACAS’s final complaint response explained that it was Mr H’s email of 6.17pm on 30 April that it considers was Mr H’s acceptance of the terms.

53. ACAS’s actions here appear to be in line with our Complaint Standards. It has provided clear explanations of what happened in terms of when it decided Mr H accepted the terms. We think ACAS’s response was consistent with which email it was referring to.

54. There are no indications of failings here. We are sorry we have been unable to reach an outcome Mr H was looking for. We do not wish to diminish any distress the complaints process caused him. We hope our thorough consideration of his complaint explains the reasons for our decision.

1. We have carefully considered Mr H’s complaint about ACAS. We were sorry to hear about the events Mr H complains about and of the stress and anxiety these events caused Mr H.

2. We have not seen any indications of failings in ACAS’s actions during the conciliation process between Mr H and the respondent. We think ACAS followed its own guidance and was clear to Mr H about when it considers an agreement to have been reached between all parties.

3. We have also seen no indications of failings in ACAS’s explanations in its response to Mr H’s complaint. It has provided clear explanations as to when it considered the agreement was reached.

4. We cannot see Mr H made ACAS aware of any reasonable adjustments he needed throughout the conciliation process. As such, ACAS did not have the opportunity to consider whether it could provide any reasonable adjustments. We will be taking no further action on this part of Mr H’s complaint.

5. We understand we have not reached the outcome Mr H was looking for when he brought his complaint to us. We hope our explanations in this statement reassures him that we have considered his concerns thoroughly.