ACAS Arbitration Scheme (England and Wales) Order 2001

Publication Date:January 01, 2001
 
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2001No. 1185

TERMS AND CONDITIONS OF EMPLOYMENT, ENGLAND AND WALES

The ACAS Arbitration Scheme (England and Wales) Order 2001

23rdMarch2001

27thMarch2001

21stMay2001

Whereas -

(1) Under section 212A(1) of the Trade Union and Labour Relations (Consolidation) Act 1992( 1) ("the 1992 Act") the Advisory, Conciliation and Arbitration Service ("ACAS") may prepare a scheme providing for arbitration in the case of disputes involving proceedings, or claims which could be the subject of proceedings before an employment tribunal arising out of a contravention or alleged contravention of Part X of the Employment Rights Act 1996( 2) (unfair dismissal);

(2) in pursuance of section 212A(1) of the 1992 Act, ACAS has prepared an arbitration scheme for unfair dismissal cases;

(3) in pursuance of section 212A(2) of the 1992 Act, ACAS has submitted a draft of the scheme to the Secretary of State and the Secretary of State approves the scheme;

Now, therefore, the Secretary of State, in exercise of the powers conferred on him by sections 212A(2), (6), (8) and (9) of the 1992 Act, hereby makes the following Order: -

Citation, commencement, interpretation and extent

1. - (1) This Order may be cited as the ACAS Arbitration Scheme (England and Wales) Order 2001 and shall come into force on 21 May 2001.

(2) In this Order -

"the 1996 Act" means the Employment Rights Act 1996;

"basic amount" means such part of an award of compensation made by an arbitrator as comprises the basic amount, determined in accordance with paragraphs 118 to 134 of the Scheme;

"the Scheme" means the arbitration scheme set out in the Schedule with the exception of paragraphs 43, 94, 159, 162 to 167, 171, 177 and 178 thereof.

(3) This Order extends to England and Wales.

Commencement of the Scheme

2. The Scheme shall come into effect on 21 May 2001.

Application of Part I of the Arbitration Act 1996

3. The provisions of Part I of the Arbitration Act 1996( 3) referred to in the Schedule at paragraphs 43, 94, 159, 162 to 167, 171, 177 and 178 and shown in italics shall as modified in those paragraphs, apply to arbitrations conducted in accordance with the Scheme.

4. - (1) Section 46(1)(b) of the Arbitration Act 1996 shall apply to arbitrations conducted in accordance with the Scheme subject to the following modification.

(2) For "such other considerations as are agreed by them or determined by the tribunal" in section 46(1)(b) substitute "the Terms of Reference in paragraph 12 of the arbitration scheme set out in the Schedule to the ACAS Arbitration Scheme (England and Wales) Order 2001".

Enforcement of re-employment orders

5. - (1) Employment tribunals shall enforce re-employment orders made in arbitrations conducted in accordance with the Scheme in accordance with section 117( 4)of the 1996 Act (enforcement by award of compensation), modified as follows.

(2) In subsection (1)(a), subsection (3) and subsection (8), for the words "section 113" substitute in each case "paragraph 102(i) of the Scheme".

(3) In subsection (2) for "section 124" substitute "section 124(1) and (5) and subsections (9) and (10)".

(4) In subsection (3)(a) for the words "sections 118 to 127A" substitute the words "sections 118 to 123, section 124(1) and (5), sections 126 and 127A and subsections (9) and (11)".

(5) After subsection (8) insert -

" (9) Section 124(1) shall not apply to compensation awarded, or to a compensatory award made, to a person in a case where the arbitrator finds the reason (or, if more than one, the principal reason) for the dismissal (or, in a redundancy case, for which the employee was selected for dismissal) to be a reason specified in any of the enactments mentioned in section 124(1)A.

(10) In the case of compensation awarded to a person under section 117(1) and (2), the limit imposed by section 124(1) may be exceeded to the extent necessary to enable the award fully to reflect the amount specified as payable under the arbitrator's award in accordance with paragraphs 110(i) or 113(iv) of the Scheme.

(11) Where -

(a) a compensatory award is an award under subsection (3)(a) of section 117, and

(b) an additional award falls to be made under subsection (3)(b) of that section,

the limit imposed by section 124(1) on the compensatory award may be exceeded to the extent necessary to enable the aggregate of the compensatory award and additional awards fully to reflect the amount specified as payable under the arbitrator's award in accordance with paragraphs 110(i) or 113(iv) of the Scheme.

(12) In this section "the Scheme" means the arbitration scheme set out in the Schedule to the ACAS Arbitration Scheme (England and Wales) Order 2001.".

Awards of compensation

6. An award of a basic amount shall be treated as a basic award of compensation for unfair dismissal for the purposes of section 184(1)(d)( 5) of the 1996 Act (which specifies such an award as a debt which the Secretary of State must satisfy if the employer has become insolvent).

Alan Johnson,

Parliamentary Under Secretary of State for Competitiveness, Department of Trade and Industry

23rd March 2001

SCHEDULE

Articles 2 and 3

ACAS ARBITRATION SCHEME

CONTENTS

Paragraphs

I.

INTRODUCTION

1-4

II.

THE ROLE OF ACAS

5

Routing of communications

6-7

III.

TERMS AND ABBREVIATIONS

8-11

IV.

ARBITRATORS' TERMS OF REFERENCE

12

V.

SCOPE OF THE SCHEME

13

Cases that are covered by the Scheme

13-15

Waiver of jurisdictional issues

16-18

Inappropriate cases

19

VI.

ACCESS TO THE SCHEME

20

Requirements for entry into the Scheme

21-23

Notification to ACAS of an Arbitration Agreement

24-27

Consolidation of proceedings

28

VII.

SETTLEMENT AND WITHDRAWAL FROM THE SCHEME

29

Withdrawal by the Employee

29

Withdrawal by the Employer

30

Settlement

31-34

VIII.

APPOINTMENT OF AN ARBITRATOR

35

The ACAS Arbitration Panel

35

Appointment to a case

36-37

Arbitrator's duty of disclosure

38-39

Removal of arbitrators

40-44

Death of an arbitrator

45

Replacement of arbitrators

46-47

IX.

GENERAL DUTY OF THE ARBITRATOR

48-49

X.

GENERAL DUTY OF THE PARTIES

50

XI.

CONFIDENTIALITY AND PRIVACY

51-52

XII.

ARRANGEMENTS FOR THE HEARING

53

Initial arrangements

53-56

Expedited hearings

57

Venue

58-59

Assistance

60

Travelling expenses/loss of earnings

61-62

Applications for postponements of, or different venues for, initial hearings

63-65

XIII.

NON-COMPLIANCE WITH PROCEDURE

66

XIV.

OUTLINE OF PROCEDURE BEFORE THE HEARING

67

Written materials

68-73

Submissions, evidence and witnesses not previously notified

74-75

Requests for documents

76

Requests for attendance of witnesses

77

Preliminary hearings and directions

78-79

XV.

OUTLINE OF PROCEDURE AT THE HEARING

80

Arbitrator's overall discretion

80

Language

81

Witnesses

82

Examination by the arbitrator

83

Representatives

84

Strict rules of evidence

85

Interim relief

86

Non-attendance at the hearing

87-88

Post-hearing written materials

89

XVI.

QUESTIONS OF EC LAW AND THE HUMAN RIGHTS ACT 1998

90

Appointment of legal adviser

90-93

Court determination of preliminary points

94

XVII.

AUTOMATIC UNFAIRNESS

95

XVIII.

AWARDS

96

Form of the award

96-97

Awards on different issues

98-100

Remedies

101-103

XIX.

AWARDS OF REINSTATEMENT OR RE-ENGAGEMENT

104

Definitions

104-105

Choice of remedy

106-108

Permanent replacements

109

Reinstatement

110-112

Re-engagement

113-114

Continuity of employment

115

XX.

AWARDS OF COMPENSATION

116-117

The basic amount

118-125

Minimum basic amounts in certain cases

126-127

Basic amount of two weeks' pay in certain cases

128-129

Reductions to the basic amount

130-134

The compensatory amount

135-138

Reductions to the compensatory amount

139-140

Internal appeal procedures

141-144

Limits on the compensatory amount

145-146

Double recovery

147

XXI.

ISSUE OF AWARDS AND CONFIDENTIALITY

148-149

XXII.

CORRECTION OF AWARDS

150

Scrutiny of awards by ACAS

150

Correction by the arbitrator

151-156

XXIII.

EFFECT OF AWARDS, ENFORCEMENT AND INTEREST

157

Effect of awards

157-158

Enforcement

159-160

Interest

161

XXIV.

CHALLENGING THE AWARD

162

Challenges on grounds of substantive jurisdiction

162

Challenges for serious irregularity

163

Appeals on questions of EC law and the Human Rights Act 1998

164

Time limits and other procedural restrictions on challenges to awards

165

Common law challenges and saving

166

Challenge or appeal: effect of order of the court

167

XXV.

LOSS OF RIGHT TO OBJECT

168

XXVI.

IMMUNITY

169-170

XXVII.

MISCELLANEOUS PROVISIONS

171

Requirements in connection with legal proceedings

171

Service of documents and notices on ACAS or the ACAS Arbitration Section

172-173

Service of documents or notices on any other person or entity

174-176

Powers of court in relation to service of documents

177

Reckoning periods of time

178

XXVIII.

TERRITORIAL OPERATION OF THE SCHEME

179

APPENDIX A: WAIVER OF RIGHTS

I.INTRODUCTION

1. The ACAS Arbitration Scheme ("the Scheme") is implemented pursuant to section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act").

2. The Scheme provides a voluntary alternative to the employment tribunal for the resolution of unfair dismissal disputes in the form of arbitration.

3. Resolution of disputes under the Scheme is intended to be confidential, informal, relatively fast and cost efficient. Procedures under the Scheme are non-legalistic, and far more flexible than the traditional model of the employment tribunal and the courts. For example (as explained in more detail below), the Scheme avoids the use of formal pleadings and formal witness and documentary procedures. Strict rules of evidence will not apply, and, as far as possible, instead of applying strict law or legal precedent, general...

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