Declining to issue a new EC certificate
17. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the event(s) complained about had a negative effect which the organisation has not put right. Having done so we cannot link the events complained about with the negative impact Ms N has claimed.
18. Ms N complains a conciliator at Acas refused to open a new EC certificate on 10 December 2024. She says the conciliator declined the request as it was a duplicate claim. However, Acas later stated the EC certificate should have been issued in its response to Ms N’s complaint.
19. As a result, Ms N says she lost the ability to bring a new disability discrimination claim within the statutory deadline. She told us she now has no way to pursue this. Ms N also says she suffered distress and a loss of confidence in the process. We were very sorry to hear this.
20. To assist us with our consideration of this matter, we asked Acas to provide the case file for the EC notification submitted by Ms N. Acas told us the case was closed on 10 December 2024. In line with its privacy notice, Acas stated it no longer holds any records for the case. It also does not record conciliation calls due to the confidential nature of conciliation.
21. Acas did advise it had some correspondence between Ms N and her conciliator, which it provided to us. It also provided us with some information relating to the complaint, which included a timeline of the case. We consider we are still able to reach a decision using the information provided to us.
22. We can see Acas’ privacy notice says it keeps early conciliation data for nine months before it is securely destroyed. At the time of our request, it had been one year and two months since the case was closed.
23. Under ‘conciliation services’, Acas’ website says calls about conciliation services are not recorded and that conciliation cases are confidential. It also says, occasionally, an Acas conciliation manager may listen to a call to help train staff and to monitor call quality.
24. We consider Acas’ policy guidance on manually prepare and issued certificates to be most relevant to this part of the complaint. It says a manual certificate can be prepared:
• if there has been an Acas error involving the content of the original certificate which was not corrected before the certificate was issued • if the ET1 is received while the early conciliation case is still active and before a certificate has been issued.
25. The policy outlines conciliation and EC managers are responsible for investigating and authorising manual certificates, as well as the process for how the appropriate manager can request one. If a manual certificate is created, the parties need to be informed why a revised certificate has been issued.
26. The policy lists ‘case closed in error as a duplicate’ as a common reason for manual certificates to be needed. It says if a case is closed in error as a duplicate, the certificate details are stored on the case, but a certificate is not created. The manual certificate will have to reflect the end date of the actual prescribed period. A manual certificate is not appropriate if the case was correctly closed.
27. Acas also has policy guidance for duplicate notifications. This says if an early conciliation manager or conciliator identifies that an EC notification is a duplicate of one accepted on an earlier date or time, they should close the most recent notification under the case closure outcome duplicate and inform the claimant.
28. The policy guidance says a duplicate case will contain exactly the same prescribed information as a case already in the system. Cases closed as duplicates will not produce a certificate.
29. On 10 December, Ms N’s EC notification was allocated to her original conciliator after another had identified it may be linked to her existing employment tribunal claim. According to Acas’ complaint response, a telephone conversation between Ms N and the conciliator took place at 9.35am. The notes from Acas document the conversation covered:
• an explanation there was no need to make a further notification regarding the disability discrimination as there was an existing claim at tribunal • an explanation claims against individuals require an EC notification • an agreement by Ms N to close the claim as a duplicate.
30. These summary notes reflect an email summary sent to Ms N by the conciliator.
31. Ms N responded to the conciliator to confirm that the new incidents she had discussed needed to be added to her Tribunal claim at an upcoming preliminary hearing. The conciliator responded to advise if the issues directly related to Ms N’s disability discrimination then it could be discussed during the preliminary hearing scheduled for January 2025.
32. On 16 December, Ms N emailed the conciliator to advise she had spoken with the Acas’ main telephone line. Ms N stated she had been advised to open a new claim for the new incidents. Ms N requested the conciliator reopen her case. She also stated she had been advised to open an ET1 and was now out of time.
33. In this case, we consider the decision not to issue a new EC certificate to be an indication of a failing. In its case timeline notes, Acas documented the respondent was not the same for the notifications raised in April and November 2024. It documented ‘so the claim falls at the first hurdle to be a duplicate’. It noted this had been identified and discussed with the conciliator.
34. Further, Acas’ policy guidance on duplicate cases say they will contain exactly the same information as a case already in the system. This does not appear to be the case here.
35. Our UK government complaint standards say organisations should openly identify instances where things have gone wrong, or where services have had an unfair impact, and take responsibility for this. Wherever possible, organisations should explain why things went wrong and identify suitable ways to put things right for service users. This includes giving meaningful and sincere apologies and explanations that openly reflect the impact on the service users concerned.
36. In its complaint responses, Acas advised it had reviewed the case notes and spoken with the conciliator involved. Acas acknowledged the conciliator did not grasp there were new issues. Acas partly upheld Ms N’s complaint.
37. Acas explained, if the issues raised as part of the EC notification of November 2024 were not identical, an EC certificate should have been issued. The operational manager offered to raise a new one and apologised for any distress caused. They also provided assurance the conciliator recognised the oversight and had discussed the matter with their manager to ensure it did not happen again.
38. We consider these actions to be appropriate and in line with our UK government complaint standards. Specifically, we can see Acas acknowledged and apologised for the error. It advised it had spoken with the conciliator involved to ensure it did not happen again.
39. Acas also offered to raise a new EC certificate for Ms N. Raising a new EC certificate is in line with Acas’ policy guidance. We note the policy specifically refers to ‘cases closed in error as a duplicate’ as a common reason for manual certificates to be needed.
40. Ms N told us her desired outcomes would be an acknowledgement, apology and service improvements. As Acas has already offered this, we consider it has taken the appropriate actions regarding this issue.
41. Ms N also told us one of her desired outcomes would be a financial remedy. We use our SOI scale to make consistent, fair and transparent recommendations. The scale has six bands ranging from level one injustices, including worry, pain and annoyance of relatively short durations, up to level six, which are life changing events often with profound consequences.
42. Our SOI scale puts Ms N’s injustice at level one. A level one injustice typically arises from a single incidence of maladministration or service failure, where the effect on the individual is of short duration, and where there are no other adverse effects or wider ongoing impact. This is the case for Ms N, who told us she suffered emotional distress and a loss of confidence. We would not recommend a financial remedy for a level one injustice. We generally consider an apology to be an appropriate remedy.
43. We note Ms N also says the decision to decline her new EC certificate meant she lost the ability to bring forward a new disability discrimination claim within the statutory deadline. We consider it would be very difficult to say that this impact was caused by Acas’ one off instance of maladministration.
44. Specifically, Ms N told her conciliator she had been advised to open an ET1 and was now out of time on 16 December 2024. This is only six days (or four working days) after the case was closed. During our initial call with Ms N, she told us it was her solicitor who advised her second claim would be out of time. She then decided not to go through with the claim.
45. In this case, Ms N acted on information provided by her solicitor, not Acas, in deciding not to pursue her second claim as it may have been out of time.
46. Both Acas’ and the gov.uk websites say people must usually make a claim to the tribunal within three months of the problem at work happening. However, Acas also says if the time limit has passed, people can still make a claim to the employment tribunal. It is up to the judge to decide whether they will accept the claim.
47. Both Acas and the gov.uk websites say the time limit for making a claim is put on hold while Acas helps the person settle the dispute (a process known as early conciliation). Ms N started this process on 9 November 2024.
48. For this reason, we do not consider we can link Ms N’s full claimed impact to the indications of failings we have identified. We can see Acas offered to raise a new EC certificate as part of its complaint response dated 10 January 2025. We cannot see Ms N took Acas up on this offer. Had she done so, she may have been able to ask the employment tribunal judge to still consider her claim.
49. We are satisfied Acas has taken appropriate action to put things right. We do not consider there are any indications it needs to do more to remedy this part of the complaint.
Complaint handling
50. 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. We have done this and have not found any indications that something has gone wrong.
51. Ms N complains Acas did not address her concerns about the conciliator’s call handling in its complaint response. As a result, she says she lost trust in the services. She also says she found comments made by the conciliator upsetting and stressful. We are sorry to hear Ms N was upset by the calls from Acas.
52. We consider Acas’ guidance on complaints handling and responding to complaints to be relevant to this part of the complaint. We also consider its team guidance on how to approach escalated complaints to be relevant.
53. The team guidance says the draft response should acknowledge the issues raised and how they have affected the complainant. It should answer every issue, apology when appropriate, and aim for letters to be empathetic in tone. It should acknowledge any outcomes such as improvements or changes the complaint has resulted in, coaching discussions with the conciliator, and any lessons learned.
54. Acas’ complaints handling guidance says the investigation into the complaint usually includes commissioning a review of records, such as conciliator case notes or listening to helpline call recordings. It also says, to improve reporting, Acas has asked the operational managers to provide information to the complaints team on specific actions taken and lessons learned. This information is then compiled and presented to Acas’ Customer Services Board to demonstrate what actions are taken to improve services and prevent issues recurring.
55. Acas’ responding to complaints guidance says for each main head of complaint, the responding manager should note whether they have sufficient information to respond and, if they do not, obtain the information as soon as is practicable. It says this may involve reviewing case notes or other evidence, such as emails, speaking to staff and managers involved and/or asking them to put in writing what happened. If the complaint relates to a phone conversation for which Acas has a recording, the manager should obtain the recording or transcript.
56. On 26 December, Ms N raised a complaint about the decision to decline the new EC certificate. In her complaint, Ms N stated the conciliator had told her ‘nine times out of 10’ the judge would add on the new claims during their telephone conversation on 16 December. Acas responded on 10 January 2025.
57. On 18 January, Ms N requested an appeal of her complaint outcome. Ms N asked Acas to address comments made by the conciliator during their initial calls as it had made her feel uncomfortable. According to Ms N’s email, the conciliator discussed managing her expectations ‘due to taxpayers money’.
58. On 12 February, Acas provided a further response to Ms N’s complaint. It explained when the conciliator made the alleged comment on 16 December 2024 it was intended to be a helpful explanation of what normally would happen where there are multiple claims relating to the same dispute. It explained the conciliator could not be more definitive because combining cases is a judicial decision.
59. Acas also explained the conciliator had no recollection of the remark regarding taxpayers money. The conciliator stated there was no reason to make the comment in Ms N’s case. They also noted no settlement figures were mentioned during the calls.
60. In its correspondence with us, Acas explained in neither of the two calls, which took place in April 2024, was there an indication that something of the effect of ‘taxpayers money’ was mentioned. It stated there was no context in which this comment could come up.
61. Regarding Ms N’s concerns about the conciliator mentoring a new staff member, Acas explained mentoring is an established training practice. It offered assurance all conciliators are bound by confidentiality. It explained this is part of its training and mentoring good practice.
62. In this case, we can see Acas has addressed Ms N’s concerns about the comments made by the conciliator in April and December 2024. Having reviewed Ms N’s complaints to Acas and Acas’ responses, we can see all the heads of complaint have been responded to. This is in line with Acas’ complaints handling guidance.
63. Further, the evidence indicates the operational manager spoke with the conciliator involved to obtain the information required to answer Ms N’s concerns. We note, as per its privacy notice, Acas does not record calls with conciliators. For this reason, we consider the operational manager acted in line with Acas’ responding to complaints guidance by speaking with the conciliator involved.
64. Overall, we have not seen any indications of failings in Acas’ complaints handling. It addressed all of Ms N’s concerns in the complaint responses. In the absence of a call recording, the operational manager spoke with the conciliator involved. Acas responded in line with its three pieces of relevant guidance on complaint handling.
65. For this reason, we do not intend to do any further work on this part of the complaint. We hope Ms N is reassured by our explanation and that Acas acted in line with relevant guidance in handling her complaint.