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  1. #1
    Basic Account Holder BlueLittleLady Novitiate



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    Default Can ACAS be in the wrong?

    Hi,

    First of all, I hope I am posting within the right area of this forum, apologies if not - I've tried!

    A while back I filed an Employment Tribunal claim against my employer mainly for disability discrimination. They offered a settlement of (just over £2000) via ACAS, which I had not accepted. My medical records were not issued by my hospital in time for the hearing so I applied for a postponement of the hearing. Two days before the hearing, the extension was not yet granted and ACAS (on behalf of respondent) phoned to tell me that I have to accept the offer by 5pm of the same day, otherwise the offer will be withdrawn and if the extension was not granted the respondent will order to 'strike out' the case. The build up by ACAS was such that they made me worried that the extension will not get granted. ACAS then told me that I had to get back to them by 5pm.

    1) I was given only a few hours to make this decision, without any legal advice or time to research as I was at work (and in my new job!) - this also goes against what ACAS state on their site, "If you don't have a representative, you should try to get advice on the terms of the settlement before you agree to it." - I wasn't given this opportunity.
    2) By 4.45pm my conciliator was not picking up calls or returning my voicemails, making the situation worse.

    Not knowing what to do, totally panicking about having to pay costs if the respondent orders to strike out the case or whatever (i don't know how that works, but it's scary!), I have responded directly to the respondent by email and said that I agree.

    The following day I got to know the hearing was postponed, but ACAS would no longer let me go back on the email, as they were saying the agreement was made. ACAS informed the tribunal that the settlement has been reached. The file has been closed.

    However, I haven't signed the COT3 form yet, and the form explains that the hearing will proceed unless I sign and return the form. I haven't received the settlement payment either, as I have not signed the COT3 yet.

    I mean, given the situation I have outlined above, is this fare? It doesn't even make real sense to me. ACAS themselves on their website state that claimants should seek independent legal advice, so how can they deliberately set out to create a situation where I am not able to seek out legal advice (who would be within 3 hours while in a new full time job, right?). At the same time the email 'agreement' doesn't seem to qualify me to get my settlement (I have to sign the COT3 first, which I hadn't), but it qualifies ACAS and the respondent to settle the case. How so? You should see the COT3 as well - the settlement is meant to be appropriate for covering months of lost earnings, personal injury, missing wages, harassment, as well as direct disability. What a set up... and they call it 'law'...


  2. #2
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    Default Re: Can ACAS be in the wrong?

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  3. #3
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    Default Re: Can ACAS be in the wrong?

    Hello there.

    The ET experts are on the employment forum. I'll move your thread there and see if they can answer your questions.

    My best, HB

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  4. #4
    Basic Account Holder JPM347 Novitiate



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    Default

    Unfortunately the answer is yes, you have 'accepted' the offer made by your previous employers. You need to remember that ACAS are, in this case, mediators. As such it is their responsibility to to pass on all communication, not matter how manifestly unpleasant or unfair it is. They do not represent one side or the other but 'referee' cases to try and induce some fairness.
    However, there may still be an argument that this deadline was manifestly unfair and unreasonable given the timescales and the issues involved. However you will need to speak to a specialist (direct access) barrister in order to explore the exact timing of this and possible ways forward.


  5. #5
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    Default Re: Can ACAS be in the wrong?

    This is not ACAS fault. If the employer has offered a settlement which they say has to be accepted by 5pm that day, there is not much ACAS can do about that. ACAS do not set the terms of the offer. ACAS have to pass that information onto you whether they like it or not. It is your employer who has been playing hardball, not ACAS.

    Generally speaking, email agreements are just as binding as written agreements. There are special formalities for employment tribunal compromise agreements have a look at s203 (3) Employment Rights Act 1996 - http://www.legislation.gov.uk/ukpga/1996/18/section/203 - note the need for independent legal advice. However, I believe that a settlement negotiated through ACAS is binding without these formalities (see s203 (2) (e)). Therefore, as long as it is clear that you intended to accept the settlement offer, I think this settlement will be binding. If you refuse to sign the COT3 and refuse to withdraw your case, and the tribunal later finds that you settled it, you need to be careful because that is the kind of situation in which you might be ordered to pay some of the other side's legal costs.

    I haven't encountered this situation before so I hope someone else will be along to confirm or deny my thoughts.


  6. #6
    Basic Account Holder SNALF Novitiate



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    Default Re: Can ACAS be in the wrong?

    Hi JPM347.
    Have a look at Allma Construction v Bonner, which confirms that, in deciding whether a settlement has been concluded through ACAS, it was held that a binding settlement had been reached.

    It is only necessary for the essentials of a contract to be agreed and this may consist of no more than an agreement that a sum of money be paid to bring litigation to an end.

    The ACAS officer had done enough to have “taken action” for the purposes of s.203 of the Employment Rights Act and, therefore, there was no need for the parties to enter into a written compromise agreement.

    If an employee tells the ACAS officer that they accept a settlement offer from their employer, this should be good enough and, if they subsequently refuse to sign the COT3 agreement, the employer (assuming the ACAS officer is in agreement with them that the settlement was accepted) should still be able to rely on the settlement to dismiss any employment-related claims by the employee.


  7. #7
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    Default Re: Can ACAS be in the wrong?

    In basic terms, even a verbal agreement, when agreed through ACAS, is binding. You don't have to sign the COT3 to enforce withdrawal of the claim.

    You will probably, depending on the wording, need to sign it before you receive your compensation, though.


  8. #8
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    Default Re: Can ACAS be in the wrong?

    You always need to be aware that ACAS are not your "mates" so you should always be very careful what you say to them or what you agree to. The are bound to be neutral independent mediators. Any agreement you make through them is likely to be binding!


  9. #9
    Basic Account Holder BlueLittleLady Novitiate



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    Default Re: Can ACAS be in the wrong?

    Hi Everyone, sorry for replying late, been having a few spinal surgeries so stayed under the covers for a bit..

    thank you for responding.
    I have reached the conclusion (and that is of course just my opinion) that ACAS can take sides, and they will as they know how well they can get away with it.

    I believe in my case acas took sides.
    A few strange incidents happened while they were dealing with my case that gave me an impression that my conciliator was under some sort of pressure, but at that time I thought 'no way, how can that be? It must be just me...'.

    There were situations that were deliberately or in-deliberately created that swayed my decisions and caused me to panic.
    If Acas is there to make sure the dealings were fair,
    why wasn't this done in my case?

    Everyone knows a person without legal training and without an opportunity to get advice will make a bad decision.
    I was put in exactly that situation by Acas.

    I understand ACAS is there to make sure that the proceedings are fair, this wasn't fair.
    If ACAS responsibility is only to repeat what the respondent says, then there is no need for Acas, I can read a letter or an email twice myself.
    I used Acas in the understanding that they do not take sides but they make sure unfair actions will not take place.

    If you think about it, in the end, I would have been better off without Acas.
    This situation would never have been created and if it would have happened, I would have been able to deal with it accordingly.

    Acas, however, and this is just my opinion, helped create a certain situation about which I cannot do anything now, and in the end Acas and the disgusting employer live another happy day, where as for me a reasonable chunk of my life is literately fu*k'd. I am grateful non the less, the 2k are a bit of help towards prescription costs and taxi fees after spinal surgery.

    Kids, Acas is good for basic advice on their helpline - use them then
    But DO NOT use their conciliation services as you CAN BE WORSE OFF!

    Sorry guys if I seem a bit upset. I am starting to learn that there really isn't any 'real' justice in the world... I mean, let's face it, not really


  10. #10
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    Default Re: Can ACAS be in the wrong?

    As indicated above - the situation was not ACAS' fault. The 5pm deadline would have been out forward by the Respondent, not ACAS - and you chose to accept the offer, pressure or not!

    Don't shoot the messenger - they are an impartial go between who act on the parties' instructions. They don't impose deadlines themselves.


  11. #11
    Basic Account Holder Atlas01 Authoritative Atlas01 Authoritative Atlas01 Authoritative Atlas01 Authoritative Atlas01 Authoritative Atlas01 Authoritative Atlas01 Authoritative Atlas01 Authoritative Atlas01 Authoritative Atlas01 Authoritative Atlas01's Avatar



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    Default Re: Can ACAS be in the wrong?

    I've been involved in a few last minute settlements one where i sat in the tribunal waiting room for an hour to be asked by the desk security why i was there and after explaining that i may be called to give evidence they told me there was no case listed, after a few calls and a barrel of laughter by the HR officer who i got through to, he told me it was settled at 5pm the previous day, yeh thanks for telling me

    I'd agree it's binding, I'd agree ACAS are there to mediate and in my opinion to protect the interests of ACAS in the main, I'd also say the advice can be good, bad and indifferent depending on which advisor you get.

    Even where there is a need for independent legal advice as part of a COT3 i found this was a paper shuffling exercise by the solicitor making a quick couple of hundred quid simply checking it wasn't blantant unfair or illegal.

    I learned very quickly with COT3's to always allow the claimant to decide what and how much they wanted because after they agreed to a couple of grand "go away" money they often felt on reflection it wasn't enough. Bottom line it is your choice, unless someone more up to date in this area knows of a "cooling off" period or such i'd say that all you can get now


  12. #12
    Basic Account Holder BlueLittleLady Novitiate



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    Default Re: Can ACAS be in the wrong?

    Hi Becky,

    Thank you for your response. Here's what my common sense would suggest though:

    If this situation was created directly by the responded I could dispute it because it wasn’t fair to pressure someone to make a decision within few hours and without any legal advice.

    Because Acas acted as a ‘messenger’, I can no longer dispute this, yet the circumstances were the same.

    This therefore makes Acas more than just a ‘messenger’. If you can’t dispute decisions done under Acas, that means Acas has to take the responsibility of making sure the adequate level of fairness is considered. If fairness is not at all considered, then Acas would be just that, a ‘messenger’, but then it should be disputable.


  13. #13
    Basic Account Holder kgrayson00 Novitiate



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    The respondent relayed an offer and timescale to ACAS, who in turn relayed this to you.
    YOU accepted this offer which wasnt forced on you by anyone.

    I would agree that the timescales and pressure set by the respondent were there to make it an appealing offer,
    but these are the games they play,
    and from their Point of view they have probably won a settlement.

    Common sense doesn't come into it, it's legally right and again YOU settled..


  14. #14
    Basic Account Holder BlueLittleLady Novitiate



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    Default Re: Can ACAS be in the wrong?

    This was totally done under what i now know as 'duress'.

    I was told that if I don't accept the offer the respondent would then consider to 'strike-out' the case and then i would be liable for legal costs. And I wasn't given an opportunity to get legal advice in that short space of time.

    Now I know that they can't ask to strike out a case just like that or because i couldn't get my medical records in time (no fault of mine), but at that time it all sounded awful and I was very scared about being presented with a bill (a thing like that could leave me in a permanent debt).

    If this sort of thing IS LEGAL, god help us all without a law degree.


  15. #15
    Basic Account Holder altobelli Novitiate altobelli Novitiate



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    Default Re: Can ACAS be in the wrong?

    Quote Originally Posted by Atlas01 View Post

    I'd agree it's binding, I'd agree ACAS are there to mediate and in my opinion to protect the interests of ACAS in the main, I'd also say the advice can be good, bad and indifferent depending on which advisor you get.
    I would agree with this 100%.


  16. #16
    Basic Account Holder Skinnered Novitiate



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    Default Re: Can ACAS be in the wrong?

    Did ACAS explain what grounds the employer thought he had to strike out the case or that they would be successful if they tried it on?


  17. #17
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    Quote Originally Posted by BlueLittleLady View Post
    Hi Becky,

    Thank you for your response. Here's what my common sense would suggest though:

    If this situation was created directly by the responded I could dispute it because it wasn’t fair to pressure someone to make a decision within few hours and without any legal advice.

    Because Acas acted as a ‘messenger’, I can no longer dispute this, yet the circumstances were the same.

    This therefore makes Acas more than just a ‘messenger’. If you can’t dispute decisions done under Acas, that means Acas has to take the responsibility of making sure the adequate level of fairness is considered. If fairness is not at all considered, then Acas would be just that, a ‘messenger’, but then it should be disputable.
    It's a fair point. Had you negotiated direct with the respondent, you could have changed your mind. As you know, you can't through ACAS.

    Possibly the problem here was a lack of legal representation which caused you to cave (and unwillingly settle the case).

    A settlement is only binding once TERMS, rather than just the AMOUNT, has been agreed though. Had you agreed a COT3?...


  18. #18
    Basic Account Holder BlueLittleLady Novitiate



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    Default Re: Can ACAS be in the wrong?

    Hi Becky,

    Thanks again for your reply.

    I was told I had to phone Acas by 5pm.
    By around 4:45 the lady at Acas was no longer picking up my calls, I literally left messages on the voicemail and kept on trying her every 3 minutes.
    Then I really panicked.

    I don't know how these legal things work and I knew even less then, so all I was worried about at that time was being slapped with a bill I can't afford and "strike out the case" phrase was just ringing in my head
    - this was the first time I even heard of a phrase like that, believe me, it can sound scary if you don't know law.

    then I emailed directly to the respondent's solicitors and I said that I can't get through to the Acas conciliator.
    The respondent's solicitor told me just to email back as a reply to the terms in the email with "I agree".

    I did that without having properly understood the terms,
    or carefully had time to read them,
    without legal advice,
    without anyone having looked at it,
    without not even being clear what that compensation is for,
    and without being able to reach Acas in my most distressed moment.

    When I went home I read the terms properly and of course I had an opportunity to discuss with family at least.
    The terms were quite general and one sided.

    I phoned Acas the next day and I explained that I feel this is really unfair and wrong but the conciliator at Acas said as far as she is concerned its now a legally binding agreement and that nothing can now be done.

    The moral of the story is,
    Acas gets another successful conciliation (oh yes, their success rate is a wooping 90%!) and they can continue boasting about how great they are,
    the respondent gets away happy,
    and I get shafted,
    which would not necessarily have happened should I have not done this via Acas.


  19. #19
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    Default Re: Can ACAS be in the wrong?

    From ACAS's point of view you did get an outcome,
    a binding promise for compensation but not as much as you would have gambled for.

    How would you feel if you were able to revisit the agreement, turn it down and then get struck out form the tribunal hearing?
    More aggrieved, I bet.

    You could have taken advice earlier but you didnt and that is not of ACAS's doing.
    One could argue that you didnt really put the effort into this that you needed to and that this outcome is the best under the circumstances.
    This is not to say I dont sympathise but in most cases we make our own destiny and preparation is most of the battle.


  20. #20
    Basic Account Holder sam1888 Novitiate



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    Default Re: Can ACAS be in the wrong?

    Hi Becky,

    Hi, I am in this same situation right now.
    What can I do?
    I have not signed the COT3 and was not aware that once wording was agreed it became binding, I thought it was only once signed, and now I feel duped.

    I dont want to sign it, and they say unless I do I dont get any payment.
    So its a trap by ACAS, they should make it very clear that wording becomes binding they did not.

    I did not have legal advice, and how is that fair to me, when ACAS should be there to make sure both parties are fairly treated.
    Just seems so wrong.

    And he just says case is closed now, but how can it be, Ive not signed or any payment.



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