25. When considering a complaint, we look at whether there are signs that the organisation made a mistake that had a negative impact. If so, we think about whether the organisation has taken steps to put things right. Having done this, we can see ACAS has already done enough to acknowledge the impact of the errors it made.
26. We have considered why Mrs X is still unhappy after getting the final response to her complaint, where ACAS said it could not accept that it was responsible for her losing money and should make a payment to her.
27. It explained to Mrs X that its conciliators (staff who deal with these cases) are not legally trained and are unable to give legal advice. It said the conciliator she dealt with explains to parties that they cannot give legal advice and recommends for them to get legal advice before entering into an agreement.
28. Mrs X feels ACAS has been very dismissive in how it replied to her complaint and she would like the money she believes she lost because of its failures.
29. She also says its complaint responses do not address its failure to recognise that a valid TUPE transfer had happened on 6 April 2021.
30. We can see that ACAS gave an apology and acknowledged that it had given incorrect advice that had influenced her decision to sign the COT3. It said it would use the points she had raised to improve its training and guidance for conciliators.
31. We agree this shows there has been service failure. Our ‘Principles of Good Administration’ expect organisations to be ‘open and accountable’ by ‘providing information and, if appropriate, advice that is clear, accurate, complete, relevant and timely.’
32. When thinking about if ACAS has done enough to put things right, and if it should have compensated Mrs X, we looked at its role and what information is publicly available about what service users can expect.
33. ACAS’s online guidance on conciliation explains:
‘ACAS conciliators can:
• explain the conciliation process • talk through the issues with both sides • talk through possible options • discuss how you may be able to solve the dispute without going to tribunal.
Conciliators are not able to:
• take sides • represent either side • tell you whether to agree on a settlement • say how strong or weak your case is • help you prepare your case for tribunal • make a judgement on how your case could turn out’.
34. This means that ACAS was correct to tell Mrs X that its advice was not legal advice or comments on how successful her case may be at ET. It explained it had appropriately warned her that service users should not rely on its advice in place of professional legal advice and they should follow it at their own risk.
35. Mrs X disagreed and said the judge at the ET decided the advice she had from ACAS was enough to satisfy the requirements of a settlement agreement in employment law. She says this means she had the right to rely on its advice.
36. We understand that the judge’s analysis on this point will have given Mrs X cause to believe that ACAS should be held responsible for the consequences of her acting on its advice. We considered this carefully, mindful that it is not our role to comment on a judicial decision.
37. We can see that the judge’s findings amount to their own interpretation of the relevant rules and legislation and this is separate to commenting on the quality of that advice or what a service user can expect from ACAS.
38. We agree that ACAS gave incorrect information to Mrs X. This does not mean it should have identified that a TUPE had happened and that this would affect her claim against the First Respondent. We understand the level of legal analysis needed would be outside of its role as explained above and can only be given by a legally trained professional.
39. As ACAS has correctly told Mrs X, those issues were legal questions for the ET to answer and it rightfully deferred to the judge. ACAS cannot be held responsible for the judicial decisions that were made and we cannot agree that its service failure caused the impact Mrs X has described.
40. This means we cannot say what the outcome of the ET might have been, even if no mistake had happened and Mrs X had been given different advice from ACAS. It is possible that the judge may have decided that Mrs X was not entitled to any further compensation, even if nothing had gone wrong with ACAS’s communication.
41. We can only say that it should not have told her that signing the COT3 would have no impact. In our view, the impact of ACAS’s poor service is avoidable frustration and distress to Mrs X, as it raised her expectations and this led to disappointment.
42. In apologising to Mrs X, acknowledging the impact on her and assuring her that learning had been taken from her experience, we can see that ACAS has provided a ‘fair and accountable’ response to her concerns in line with our UK Central Government Complaint Standards. We think this is enough and we are not asking it to do more.
43. We understand Mrs X was unable to continue funding legal support and this meant she had to rely on ACAS. We are sorry this meant she was unable to get the kind of specialist advice she needed at that time and that it led to her feeling she has been denied a fair outcome.
44. If Mrs X is still unhappy and if her circumstances allow, she could explore what legal options she has. We hope our explanation is helpful to Mrs X and we wish her well.