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STATUTORY INSTRUMENTS

2001 No. 1185
TERMS AND CONDITIONS OF EMPLOYMENT, ENGLAND AND WALES
The ACAS Arbitration Scheme (England and Wales) Order 2001

	Made	23rd March 2001
	Laid before Parliament	27th March 2001
	Coming into force	21st May 2001

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 -

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

SCHEDULEArticles 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 principles of fairness and good conduct will be taken into account (including, for example, principles referred to in any relevant ACAS "Disciplinary and Grievance Procedures" Code of Practice or "Discipline at Work" Handbook). Arbitral decisions ("awards") will be final, with very limited opportunities for parties to appeal or otherwise challenge the result.

     4. The Scheme also caters for requirements imposed as a matter of law (e.g. the Human Rights Act 1998, existing law in the field of arbitration and EC law).

II. THE ROLE OF ACAS
     5. As more fully explained below, cases enter the Scheme by reference to ACAS, which appoints an arbitrator from a panel (see paragraphs 35-37 below) to determine the dispute. ACAS provides administrative assistance during the proceedings, and may scrutinise awards and refer any clerical or other similar errors back to the arbitrator. Disputes are determined, however, by arbitrators and not by ACAS.

Routing of communications
     6. Unless in the course of a hearing, all communications between either party and the arbitrator shall be sent via the ACAS Arbitration Section.

     7. Paragraph 172 below sets out the manner in which any document, notice or communication must be served on, or transmitted to, ACAS or the ACAS Arbitration Section.

III. TERMS AND ABBREVIATIONS
     8. The term "Employee" is used to denote the claimant (i.e. the former employee), including any person entitled to pursue a claim arising out of a contravention, or alleged contravention, of Part X of the Employment Rights Act 1996.

     9. The term "Employer" is used to denote the respondent.

     10. The term "EC law" means:

11. With the exception of paragraph 21 (i) below ("Requirements for entry into the Scheme"), references to anything being written or in writing include its being recorded by any means so as to be usable for subsequent reference.

IV. ARBITRATOR'S TERMS OF REFERENCE
12. Every agreement to refer a dispute to arbitration under this Scheme shall be taken to be an agreement that the arbitrator decide the dispute according to the following Terms of Reference:

In deciding whether the dismissal was fair or unfair, the arbitrator shall:

Nothing in the Terms of Reference affects the operation of the Human Rights Act 1998 in so far as this is applicable and relevant and (with respect to procedural matters) has not been waived by virtue of the provisions of this Scheme.

V. SCOPE OF THE SCHEME
Cases that are covered by the Scheme
     13. This Scheme only applies to cases of alleged unfair dismissal (i.e. 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).

     14. The Scheme does not extend to other kinds of claim which are often related to, or raised at the same time as, a claim of unfair dismissal. For example, sex discrimination cases, and claims for unpaid wages are not covered by the Scheme.

     15. If a claim of unfair dismissal has been referred for resolution under the Scheme, any other claim, even if part of the same dispute, must be settled separately, or referred to the employment tribunal, or withdrawn. In the event that different aspects of the same dispute are being heard in the employment tribunal as well as under the Scheme, the arbitrator may decide, if appropriate or convenient, to postpone the arbitration proceedings pending a determination by the employment tribunal.

Waiver of jurisdictional issues
     16. Because of its informal nature, the Scheme is not designed for disputes raising jurisdictional issues, such as for example:

- whether or not the Employee was employed by the Employer;

- whether or not the Employee had the necessary period of continuous service to bring the claim;

- whether or not time limits have expired and/or should be extended.

     17. Accordingly, when agreeing to refer a dispute to arbitration under the Scheme, both parties will be taken to have accepted as a condition of the Scheme that no jurisdictional issue is in dispute between them. The arbitrator will not therefore deal with such issues during the arbitration process, even if they are raised by the parties, and the parties will be taken to have waived any rights in that regard.

     18. In particular, in agreeing to arbitration under the Scheme, the parties will be treated as having agreed that a dismissal has taken place.

Inappropriate cases
     19. The Scheme is not intended for disputes involving complex legal issues. Whilst such cases will be accepted for determination (subject to the Terms of Reference), parties are advised, where appropriate, to consider applying to the employment tribunal or settling their dispute by other means.

VI. ACCESS TO THE SCHEME
20. The Scheme is an entirely voluntary system of dispute resolution: it will only apply if parties have so agreed.

Requirements for entry into the Scheme
21. Any agreement to submit a dispute to arbitration under the Scheme must satisfy the following requirements (an "Arbitration Agreement"):

(a) where a conciliation officer has taken action under section 18 of the Employment Tribunals Act 1996 (a "Conciliated Agreement") or

(b) through a compromise agreement, where the conditions regulating such agreements under the Employment Rights Act 1996 are satisfied (a "Compromise Agreement");

22. Where an agreement fails to satisfy any one of these requirements, no valid reference to the Scheme will have been made, and the parties will have to settle their dispute by other means or have recourse to the employment tribunal.

23. Where:

a separate settlement must be reached referring the unfair dismissal claim to arbitration which satisfies all the requirements listed above (although it may form part of one overall settlement document).

Notification to ACAS of an Arbitration Agreement
     24. All Arbitration Agreements must be notified to ACAS within six weeks of their conclusion, by either of the parties or their independent advisers or representatives, or an ACAS conciliator, sending a copy of the agreement and Waiver Forms, together with IT1 and IT3 forms if these have been completed, to the ACAS Arbitration Section.

     25. For the purposes of the previous paragraph, an Arbitration Agreement is treated as "concluded" on the date it is signed, or if signed by different people at different times, on the date of the last signature.

     26. Where an Arbitration Agreement is not notified to ACAS within six weeks, ACAS will not arrange for the appointment of an arbitrator under the Scheme, unless notification within that time was not reasonably practicable. Any party seeking to notify ACAS of an Arbitration Agreement outside this period must explain in writing to the ACAS Arbitration Section the reason for the delay. ACAS shall appoint an arbitrator, in accordance with the appointment provisions below, to consider the explanation, and that arbitrator may seek the views of the other party, and may call both parties to a hearing to establish the reasons for the delay. The arbitrator shall then rule in an award on whether or not the agreement can be accepted for hearing under the Scheme.

     27. Any such hearing and award will be governed by the provisions of this Scheme.

Consolidation of proceedings
     28. Where all parties so agree in writing, ACAS may consolidate different arbitral proceedings under the Scheme.

VII. SETTLEMENT AND WITHDRAWAL FROM THE SCHEME
Withdrawal by the Employee
     29. At any stage of the arbitration process, once an Arbitration Agreement has been concluded and the reference has been accepted by ACAS, the party bringing the unfair dismissal claim may withdraw from the Scheme, provided that any such withdrawal is in writing. Such a withdrawal shall constitute a dismissal of the claim.

Withdrawal by the Employer
     30. Once an Arbitration Agreement has been concluded and the reference has been accepted by ACAS, the party against whom a claim is brought cannot unilaterally withdraw from the Scheme.

Settlement
     31. Parties are free to reach an agreement settling the dispute at any stage.

     32. If such an agreement is reached:

33. An agreed award shall state that it is an award of the arbitrator by consent and shall have the same status and effect as any other award on the merits of the case.

34. In rendering an agreed award, the arbitrator:

VIII. APPOINTMENT OF AN ARBITRATOR
The ACAS Arbitration Panel
     35. Arbitrators are selected to serve on the ACAS Arbitration Panel on the basis of their practical knowledge and experience of discipline and dismissal issues in the workplace. They are recruited through an open recruitment exercise, and appointed to the Panel on the basis of standard terms of appointment. It is a condition of their appointment that they exercise their duties in accordance with the terms of this Scheme. Each appointment is initially for a period of two years, although it may be renewed by ACAS, at the latter's discretion. Payment is made by ACAS on the basis of time spent in connection with arbitral proceedings.

Appointment to a case
     36. Arbitral appointments are made exclusively by ACAS from the ACAS Arbitration Panel. Parties will have no choice of arbitrator.

     37. Once ACAS has been notified of a valid Arbitration Agreement, it will select and appoint an arbitrator, and notify all parties of the name of the arbitrator so appointed.

Arbitrator's duty of disclosure
     38. Immediately following selection (and before an appointment is confirmed by ACAS), every arbitrator shall disclose in writing to ACAS (to be forwarded to the parties) any circumstances known to him or her likely to give rise to any justifiable doubts as to his or her impartiality, or confirm in writing that there are no such circumstances.

     39. Once appointed, and until the arbitration is concluded, every arbitrator shall be under a continuing duty forthwith to disclose to ACAS (to be forwarded to the parties) any such circumstances which may have arisen since appointment.

Removal of arbitrators
     40. Arbitrators may only be removed by ACAS or the court (under the provisions in paragraphs 41 to 43 below).

     41. Applications under the Scheme to remove an arbitrator on any of the grounds set out in sections 24(1)(a) and (c) of the Arbitration Act 1996 shall be made in the first instance to ACAS (addressed to the ACAS Arbitration Section).

     42. If ACAS refuses such an application, a party may thereafter apply to the court.

     43. -

    (1) Sections 24(1)(a) and (c), 24(2), 24(3), 24(5) and 24(6) of the Arbitration Act 1996[6] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1) for "(upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) apply to the court" substitute "(upon notice to the other party, to the arbitrator concerned and to the Advisory, Conciliation and Arbitration Service ("ACAS")) apply to the High Court or Central London County Court".

    (3) In subsection (2) -

(a)

omit "If there is an arbitral or other institution or person vested by the parties with power to remove an arbitrator,";

(b)

for "that institution or person" substitute "ACAS".

    44. The arbitrator may continue the proceedings and make an award while an application to ACAS (as well as the court) to remove him or her is pending.

Death of an arbitrator
     45. The authority of an arbitrator is personal and ceases on his or her death.

Replacement of arbitrators
     46. Where an arbitrator ceases to hold office for any reason, he or she shall be replaced by ACAS in accordance with the appointment provisions above.

     47. Once appointed, the replacement arbitrator shall determine whether and, if so, to what extent the previous proceedings should stand.

IX. GENERAL DUTY OF THE ARBITRATOR
48. The arbitrator shall:

49. The arbitrator shall comply with the general duty (see paragraph 48 above) in conducting the arbitral proceedings, in his or her decisions on matters of procedure and evidence and in the exercise of all other powers conferred on him or her.

X. GENERAL DUTY OF THE PARTIES
     50. The parties shall do all things necessary for the proper and expeditious conduct of the arbitral proceedings. This includes (without limitation) complying without delay with any determination of the arbitrator as to procedural or evidential matters, or with any order or directions of the arbitrator, and co-operating in the arrangement of any hearing.

XI. CONFIDENTIALITY AND PRIVACY
     51. Arbitrations, and all associated procedures under the Scheme, are strictly private and confidential.

     52. Hearings may only be attended by the arbitrator, the parties, their representatives, any interpreters, witnesses and a legal adviser if appointed. If the parties so agree, an ACAS official or arbitrator in training may also attend.

XII. ARRANGEMENTS FOR THE HEARING
Initial arrangements
     53. A hearing must be held in every case, notwithstanding any agreement between the parties to a purely written procedure.

     54. Once an arbitrator has been appointed by ACAS, a hearing shall be arranged as soon as reasonably practicable by him or her, with the administrative assistance of the ACAS Arbitration Section.

     55. The arbitrator shall decide the date and venue for the hearing, in so far as an agreement cannot be reached with all parties within two months of the initial notification to ACAS of the Arbitration Agreement.

     56. The ACAS Arbitration Section shall contact all parties with details of the date and venue for the hearing.

Expedited hearings
     57. If:

the arbitrator may expedite the hearing, on the application of any party.

Venue
     58. Hearings may be held in any venue, provided that the hearing will only be held at the Employee's former workplace, or a similarly non-neutral venue, if all parties so agree.

     59. Where premises have to be hired for a hearing, ACAS shall meet the reasonable costs of so doing.

Assistance
     60. Where a party needs the services of an interpreter, signer or communicator at the hearing, ACAS should be so informed well in advance of the hearing. Where an arbitrator agrees that such assistance is required, ACAS shall meet the reasonable costs of providing this.

Travelling expenses / loss of earnings
     61. Every party shall meet their own travelling expenses and those of their representatives and witnesses.

     62. No loss of earnings are payable by ACAS to anyone involved in the arbitration. However, where an arbitrator rules that a dismissal was unfair, he or she may include in the calculation of any compensation a sum to cover reasonable travelling expenses and loss of earnings incurred by the Employee personally in attending the hearing.

Applications for postponements of, or different venues for, initial hearings
     63. Any application for a postponement of, or a different venue for, an initial hearing must be made in writing, with reasons, to the arbitrator via the ACAS Arbitration Section within 14 days of the date of the letter notifying the hearing arrangements. Such applications will be determined by the arbitrator without an oral hearing after all parties have received a copy of the application and been given a reasonable opportunity to respond.

     64. If the application is rejected, the initial hearing will be held on the original date and/or in the original venue.

     65. This provision does not affect the arbitrator's general discretion (set out below) with respect to postponements after an initial hearing has been fixed, or with respect to other aspects of the procedure. In particular, procedural applications may be made to the arbitrator at the hearing itself.

XIII. NON-COMPLIANCE WITH PROCEDURE
66. If a party fails to comply with any aspect of the procedure set out in this Scheme, or any order or direction by the arbitrator, or fails to comply with the general duty in section X above, the arbitrator may (in addition to any other power set out in this Scheme):

XIV. OUTLINE OF PROCEDURE BEFORE THE HEARING
67. Once a hearing has been fixed, the following procedure shall apply, subject to any direction by the arbitrator.

Written materials
68. At least 14 days before the date of the hearing, each party shall send to the ACAS Arbitration Section (for forwarding to the arbitrator and the other party) one copy of a written statement of case, together with:

69. Written statements of case should briefly set out the main particulars of each party's case, which can then be expanded upon if necessary at the hearing itself. The statement should include an explanation of the events which led up to the dismissal, including an account of the sequence and outcome of any relevant meetings, interviews or discussions. The parties should come to the hearing prepared to address the practicability of reinstatement or re-engagement, in so far as the Employee seeks such remedies.

70. Supporting documentation or other material may include (without limitation) copies of:

(a) pay slips, P60s or wage records

(b) details of benefits paid to the Employee such as travelling expenses and free or subsidised accommodation

(c) guidance about, and (if available) actuarial assessments of, pension entitlements

(d) details of any welfare benefits received

(e) evidence of attempts to find other work, or otherwise mitigate the loss arising from the dismissal.

     71. The parties must also supply details of any relevant awards of compensation that may have been made by any other tribunal or court in connection with the subject matter of the claim.

     72. Legible copies of documents must be supplied to ACAS even if they have already been supplied to an ACAS conciliator before the Arbitration Agreement was concluded.

     73. No information on the conciliation process, if any, shall be disclosed by an ACAS conciliator to the arbitrator.

Submissions, evidence and witnesses not previously notified
     74. Written statements of case and documentary or other material that have not been provided to the ACAS Arbitration Section prior to the hearing (in accordance with paragraph 68 above) may only be relied upon at the hearing with the arbitrator's permission.

     75. All representatives and witnesses who have been listed as accompanying a party at the hearing should be present at the start of the hearing. Witnesses who have not been included in a list submitted to the ACAS Arbitration Section prior to the hearing may only be called with the arbitrator's permission.

Requests for documents
     76. Any party may request the other party to produce copies of relevant documents which are not in the requesting party's possession, custody or control. Although the arbitrator has no power to compel a party to comply, the arbitrator may draw an adverse inference from a party's failure to comply with a reasonable request.

Requests for attendance of witnesses
     77. Although the arbitrator has no power to compel the attendance of anybody at the hearing, the arbitrator may draw an adverse inference if an employer who is a party to the arbitration fails or refuses to allow current employees or other workers (who have relevant evidence to give) time off from work to attend the hearing, should such an employer be so requested.

Preliminary hearings and directions
     78. Where the arbitrator believes that there may be considerable differences between the parties over any issue, including the availability or exchange of documents, or the availability of witnesses, the arbitrator may call the parties to a preliminary hearing to address such issues, or he or she may give procedural directions in correspondence.

     79. In the course of a preliminary hearing or in correspondence, the arbitrator may express views on the desirability of information and/or evidence being available at the hearing.

XV. OUTLINE OF PROCEDURE AT THE HEARING
Arbitrator's overall discretion
     80. Subject to the arbitrator's general duty (Section IX above), and subject to the points set out below, the conduct of the hearing and all procedural and evidential matters (including applications for adjournments and changes in venue) shall be for the arbitrator to decide.

Language
     81. The language of the proceedings shall be English, unless the Welsh language is applicable by virtue of the Welsh Language Act 1993 (as amended from time to time). Reference should be made to paragraph 60 above if the Welsh language is to be used.

Witnesses
     82. No party or witness shall be cross-examined by a party or representative, or examined on oath or affirmation.

Examination by the arbitrator
     83. The arbitrator shall have the right to address questions directly to either party or to anybody else attending the hearing, and to take the initiative in ascertaining the facts and (where applicable) the law.

Representatives
     84. The parties may be accompanied by any person chosen by them to help them to present their case at the hearing, although no special status will be accorded to legally qualified representatives. Each party is liable for any fees or expenses incurred by any representatives they appoint.

Strict rules of evidence
     85. The arbitrator will not apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion.

Interim relief
     86. The arbitrator shall have no power to order provisional or interim relief, but may expedite the proceedings where appropriate.

Non-attendance at the hearing
     87. If, without showing sufficient cause, a party fails to attend or be represented at a hearing, the arbitrator may:

88. In the case of the non-attendance of the Employee, if the arbitrator decides to adjourn the hearing, he or she may write to the Employee to request an explanation for the non-attendance. If the arbitrator decides that the Employee has not demonstrated sufficient cause for the non-attendance, he or she may rule in an award that the claim be treated as dismissed.

Post-hearing written materials
89. No further submissions or evidence will be accepted after the end of the substantive hearing without the arbitrator's permission, which will only be granted in exceptional circumstances. Where permission is granted, any material is to be sent to the ACAS Arbitration Section, to be forwarded to the arbitrator and all other parties.

XVI. QUESTIONS OF EC LAW AND THE HUMAN RIGHTS ACT 1998
Appointment of legal adviser
     90. The arbitrator shall have the power, on the application of any party or of his or her own motion, to require the appointment of a legal adviser to assist with respect to any issue of EC law or the Human Rights Act 1998 that, in the arbitrator's view and subject to paragraph 12 above (Arbitrator's Terms of Reference), might be involved and relevant to the resolution of the dispute.

     91. The legal adviser will be appointed by ACAS, to report to the arbitrator and the parties, and shall be subject to the duty of disclosure set out in paragraphs 38 and 39 above.

     92. The arbitrator shall allow the legal adviser to attend the proceedings, and may order an adjournment and/or change in venue to facilitate this.

     93. The parties shall be given a reasonable opportunity to comment on any information, opinion or advice offered by the legal adviser, following which the arbitrator shall take such information, opinion or advice into account in determining the dispute.

Court determination of preliminary points
     94. -

    (1) Section 45 of the Arbitration Act 1996[7] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1) -

(a)

for "Unless otherwise agreed by the parties, the court" substitute "The High Court or Central London County Court";

(b)

for "any question of law" substitute "any question (a) of EC law, or (b) concerning the application of the Human Rights Act 1998";

(c)

omit "An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.".

    (3) In subsection (2)(b) omit sub-paragraph (i).

    (4) Omit subsection (4).

    (5) After subsection (6), insert -

(7)

In this section, "EC law" means -

(a)

any enactment in the domestic legislation of England and Wales giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties, and

(b)

any such rights, powers, liabilities, obligations and restrictions which are not given effect by any such enactment.

XVII. AUTOMATIC UNFAIRNESS
95. In deciding whether the dismissal was fair or unfair, subject to paragraph 12 above (Arbitrator's Terms of Reference), the arbitrator shall have regard to

XVIII. AWARDS
Form of the award
96. The award shall be in writing, signed by the arbitrator.

97. The award (unless it is an agreed award) shall:

Awards on different issues
98. The arbitrator may make more than one award at different times on different aspects of the matters to be determined.

99. The arbitrator may, in particular, make an award relating:

100. If the arbitrator does so, he or she shall specify in his or her award the issue, or the claim or part of a claim, which is the subject matter of the award.

Remedies
101. In every case, the arbitrator shall:

102. In the event that the arbitrator finds that the dismissal was unfair:

103. In cases where the arbitrator finds that the dismissal was unfair by reason of the operation of EC law, the arbitrator shall apply the relevant provisions of English law with respect to remedies for unfair dismissal, in so far as these may differ from sections XIX and XX of the Scheme.

XIX. AWARDS OF REINSTATEMENT OR RE-ENGAGEMENT
Definitions
     104. An order for reinstatement (which must be in the form of an award) is an order that the Employer shall treat the Employee in all respects as if he or she had not been dismissed.

     105. An order for re-engagement (which must be in the form of an award) is an order, on such terms as the arbitrator may decide, that the Employee be engaged by the Employer, or by a successor of the Employer or by an associated Employer, in employment comparable to that from which he or she was dismissed or in other suitable employment.

Choice of remedy
     106. In exercising his or her discretion with respect to the remedy to be awarded under paragraph 102 (i) above, the arbitrator shall first consider whether to make an order for reinstatement, and in so doing shall take into account:

107. If the arbitrator decides not to make an order for reinstatement, he or she shall then consider whether to make an order for re-engagement and, if so, on what terms. In so doing, the arbitrator shall take into account:

108. If ordering re-engagement, the arbitrator shall do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement (with the exception of cases where contributory fault has been taken into account under paragraph 107 (iii) above).

Permanent replacements
109. Where in any case an Employer has engaged a permanent replacement for a dismissed Employee, the arbitrator shall not take that fact into account in determining, for the purposes of paragraphs 106 (ii) and 107 (ii) above, whether it is practicable to comply with an order for reinstatement or re-engagement. This does not apply, however, where the Employer shows:

(a) he or she engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed Employee that he or she wished to be reinstated or re-engaged, and

(b) when the Employer engaged the replacement it was no longer reasonable for him or her to arrange for the dismissed Employee's work to be done except by a permanent replacement.

Reinstatement
110. On making an order for reinstatement, the arbitrator shall specify:

111. If the Employee would have benefited from an improvement in his or her terms and conditions of employment had he or she not been dismissed, an order for reinstatement shall require him or her to be treated as if he or she had benefited from that improvement from the date on which he or she would have done so but for being dismissed.

112. In calculating for the purposes of paragraph 110 (i) above any amount payable by the Employer, the arbitrator shall take into account, so as to reduce the Employer's liability, any sums received by the Employee in respect of the period between the date of termination of employment and the date of reinstatement by way of:

and such other benefits as the arbitrator thinks appropriate in the circumstances.

Re-engagement
113. On making an order for re-engagement the arbitrator shall specify the terms on which re-engagement is to take place, including:

114. In calculating, for the purposes of paragraph 113 (iv) above, any amount payable by the employer, the arbitrator shall take into account, so as to reduce the Employer's liability, any sums received by the Employee in respect of the period between the date of termination of employment and the date of re-engagement by way of:

and such other benefits as the arbitrator thinks appropriate in the circumstances.

Continuity of employment
115. The Employee's continuity of employment will be preserved in the same way as it would be under an award of the employment tribunal.

XX. AWARDS OF COMPENSATION
     116. When an arbitrator makes an award of compensation, instead of an award for reinstatement or re-engagement, such compensation shall consist of a basic amount and a compensatory amount.

     117. Where paragraph 142 below applies, an award of compensation shall also include a supplementary amount.

The basic amount
     118. (Subject to the following provisions) the basic amount shall be calculated by:

119. As to the "effective date of termination":

(a) in relation to an Employee whose contract of employment is terminated by notice, whether given by his or her Employer or by the Employee, the date on which the notice expires;

(b) in relation to an Employee whose contract of employment is terminated without notice, the date on which the termination takes effect; and

(c) in relation to an Employee who is employed under a contract for a fixed term which expires without being renewed under the same contract, the date on which the term expires.

(a) the contract of employment is terminated by the Employer, and

(b) the notice required by section 86 of the Employment Rights Act 1996 (as amended from time to time) to be given by an Employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined in paragraph 119 (i) above),

the later date is the effective date of termination.

(a) the date when notice of termination was given by the Employer, or

(b) where no notice was given, the date when the contract of employment was terminated by the Employer.

(a) the contract of employment is terminated by the Employee, and

(b) the material date does not fall during a period of notice given by the Employer to terminate that contract, and

(c) had the contract been terminated not by the Employee but by notice given on the material date by the Employer, that notice would have been required by section 86 of the Employment Rights Act 1996 (as amended from time to time) to expire on a date later than the effective date of termination (as defined in paragraph 119 (i) above),

the later date is the effective date of termination.

(a) the date when notice of termination was given by the Employee, or

(b) where no notice was given, the date when the contract of employment was terminated by the Employee.

120. In determining "continuous employment", the arbitrator shall have regard to Chapter I of Part XIV of the Employment Rights Act 1996 (as amended from time to time).

121. The "appropriate amount" means:

     122. In calculating the amount of a week's pay of an Employee, the arbitrator shall have regard to Chapter II of Part XIV of the Employment Rights Act 1996, as amended from time to time, or any other relevant statutory provision applicable to the calculation of a week's pay.

     123. Where twenty years of employment have been reckoned under paragraph 118 above, no account shall be taken under that paragraph of any year of employment earlier than those twenty years.

     124. Where the effective date of termination is after the sixty-fourth anniversary of the day of the Employee's birth, the amount arrived at under paragraphs 118, 121 and 123 above shall be reduced by the "appropriate fraction" (see paragraph 125 below).

     125. The "appropriate fraction" means the fraction of which:

Minimum basic amounts in certain cases
126. A "minimum basic amount" shall apply where the arbitrator has found that the dismissal was unfair, and where the reason (or, if more than one, the principal reason):

- in a redundancy case (see paragraph 129 (i) below), for selecting the Employee for dismissal, or

- otherwise, for the dismissal

was one of the following:

Health and safety cases

the Employee performed (or proposed to perform) any functions as such a representative or a member of such a committee;

Working time cases

(a) a representative of members of the workforce for the purposes of Schedule 1 to the Working Time Regulations 1998 (as amended from time to time), or

(b) a candidate in an election in which any person elected will, on being elected, be such a representative,

performed (or proposed to perform) any functions or activities as such a representative or candidate;

Trustees of occupational pension schemes

Employee representatives

(a) an employee representative for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or Regulations 10 and 11 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (as amended from time to time), or

(b) a candidate in an election in which any person elected will, on being elected, be such an employee representative,

performed (or proposed to perform) any functions or activities as such an employee representative or candidate;

Union membership or activities

(a) a time outside the employee's working hours, or

(b) a time within his or her working hours at which, in accordance with arrangements agreed with or consent given by his or her employer, it is permissible for him or her to take part in the activities of a trade union;

and for this purpose "working hours", in relation to an Employee, means any time when, in accordance with his or her contract of employment, he or she is required to be at work.

(a) the employee's refusal, or proposed refusal, to comply with a requirement (whether or not imposed by his or her contract of employment or in writing) that, in the event of his or her not being a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, he or she must make one or more payments, or

(b) his or her objection, or proposed objection, (however expressed) to the operation of a provision (whether or not forming part of his or her contract of employment or in writing) under which, in the event mentioned in paragraph (x) (a) above, his or her employer is entitled to deduct one or more sums from the remuneration payable to him or her in respect of his or her employment,

the reason shall be treated as falling within paragraph (vii)(c) above.

Other categories

127. Before any reductions are taken into account under paragraphs 130-134 below ("Reductions to the basic amount"), the "minimum basic amount" shall not be less than:

Basic amount of two weeks' pay in certain cases
128. Where:

(a) by virtue of section 138 of the Employment Rights Act 1996, as amended from time to time, is not regarded as dismissed for the purposes of Part XI of that Act, or

(b) by virtue of section 141 of that Act, as amended from time to time, is not, or (if he or she were otherwise entitled) would not be, entitled to a redundancy payment,

the basic amount shall be two weeks' pay (for the definition of "week's pay", see paragraph 122 above).

129. For the purposes of this Scheme:

Reductions to the basic amount
     130. Where the arbitrator finds that the Employee has unreasonably refused an offer by the Employer which (if accepted) would have the effect of reinstating the Employee in his or her employment in all respects as if he or she had not been dismissed, the arbitrator shall reduce or further reduce the basic amount to such extent as he or she considers just and equitable having regard to that finding.

     131. Where the arbitrator considers that any conduct of the Employee before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the basic amount to any extent, the arbitrator shall reduce or further reduce that amount accordingly. In assessing such conduct, the arbitrator shall disregard (if relevant) those matters set out in section 155 of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended from time to time.

     132. The preceding paragraph does not apply in a redundancy case (see paragraph 129 (i) above) unless the reason for selecting the Employee for dismissal was one of those specified in paragraph 126 above ("Minimum basic amounts in certain cases"), and in such a case, the preceding paragraph applies only to so much of the basic amount as is payable because of paragraph 126 above.

     133. Where the Employee has been awarded any amount in respect of the dismissal under a dismissal procedures agreement designated under section 110 of the Employment Rights Act 1996 (as amended from time to time), the arbitrator shall reduce or further reduce the amount of the basic award to such extent as he or she considers just and equitable having regard to that award.

     134. The basic amount shall be reduced or further reduced by the amount of any payment made by the Employer to the Employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI of the Employment Rights Act 1996, as amended from time to time, or otherwise).

The compensatory amount
     135. (Subject to the following provisions) the compensatory amount shall be such as the arbitrator considers just and equitable in all the circumstances having regard to the loss sustained by the Employee in consequence of the dismissal - in so far as that loss is attributable to action taken by the Employer.

     136. The loss referred to in paragraph 135 above shall be taken to include:

only the loss referable to the amount (if any) by which such a payment would have exceeded the basic amount in respect of the same dismissal (as calculated under the provisions set out above - but excluding any reductions under paragraphs 130-134 above ("Reductions to the basic amount")).

137. In ascertaining the loss referred to in paragraph 135 above, the arbitrator shall apply the principle that a person has a duty to mitigate his or her loss.

138. In determining, for the purposes of paragraph 135 above, how far any loss sustained by the Employee was attributable to action taken by the Employer, no account shall be taken of any pressure which by:

was exercised on the Employer to dismiss the Employee; and that question shall be determined as if no such pressure had been exercised.

Reductions to the compensatory amount
139. Where the arbitrator finds that the dismissal was to any extent caused or contributed to by any conduct of the Employee, he or she shall reduce the compensatory amount by such proportion as he or she considers just and equitable having regard to that finding. In assessing such conduct, the arbitrator shall disregard (if relevant) those matters set out in section 155 of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended from time to time.

140. If :

that excess goes to reduce the compensatory amount.

Internal appeal procedures
141. Where an award of compensation is to be made, and the arbitrator finds that:

the arbitrator shall reduce the compensatory amount included in an award of compensation by such amount (if any) as he or she considers just and equitable.

142. Where an award of compensation is to be made, and the arbitrator finds that:

the award of compensation shall include a supplementary amount, being such amount (if any) as the arbitrator considers just and equitable.

     143. In determining the amount of a reduction under paragraph 141 above or a supplementary amount under paragraph 142 above, the arbitrator shall have regard to all the circumstances of the case, including in particular the chances that an appeal under the procedure provided by the Employer would have been successful.

     144. The amount of such a reduction or supplementary amount shall not exceed the amount of two weeks' pay (for the definition of "week's pay", see paragraph 122 above).

Limits on the compensatory amount
     145. With the exception of:

(a) in a redundancy case, for selecting the Employee for dismissal, or

(b) otherwise for the dismissal,

was that the Employee made a protected disclosure (within the meaning of Part IVA of the Employment Rights Act 1996, as amended from time to time); and

no compensatory amount awarded by an arbitrator shall exceed the statutory limit provided for in section 124(1) of the Employment Rights Act 1996, as amended from time to time.

146. The limit referred to above applies to the amount which the arbitrator would award (apart from paragraph 145 above) in respect of the subject matter of the complaint, after taking into account:

Double recovery
147. Where the same acts of the Employer are relied upon by the Employee:

the arbitrator shall not award compensation in respect of any loss or other matter which is to be or has been taken into account by the employment tribunal in awarding compensation with respect to the discrimination claim.

XXI. ISSUE OF AWARDS AND CONFIDENTIALITY
     148. The arbitrator's award shall be sent by ACAS to both parties.

     149. The award shall be confidential, and shall only be issued to the parties or to their nominated advisers or representatives. Awards will not be published by ACAS, or lodged with the employment tribunal by ACAS, although awards may be retained by ACAS for monitoring and evaluation purposes, and, from time to time, ACAS may publish general summary information concerning cases heard under the Scheme, without identifying any individual cases.

XXII. CORRECTION OF AWARDS
Scrutiny of awards by ACAS
     150. Before being sent to the parties, awards may be scrutinised by ACAS to check for clerical or computational mistakes, errors arising from accidental slips or omissions, ambiguities, or errors of form. Without affecting the arbitrator's liberty of decision, ACAS may refer the award back to the arbitrator (under the provisions below) in order to draw his or her attention to any such point.

Correction by the arbitrator
     151. The arbitrator may, on his or her own initiative or on the application of a party or ACAS:

     152. In so far as any such correction or additional award involves a new issue that was not previously before the parties, this power shall not be exercised without first affording the parties a reasonable opportunity to make written representations to the arbitrator.

     153. Any application by a party for the exercise of this power must be made via the ACAS Arbitration Section within 28 days of the date the award was despatched to the applying party by ACAS.

     154. Any correction of the award shall be made within 28 days of the date the application was received by the arbitrator or, where the correction is made by the arbitrator on his or her own initiative, within 28 days of the date of the award.

     155. Any additional award shall be made within 56 days of the date of the original award.

     156. Any correction of the award shall form part of the award.

XXIII. EFFECT OF AWARDS, ENFORCEMENT AND INTEREST
Effect of awards
     157. Awards made by arbitrators under this Scheme are final and binding both on the parties and on any persons claiming through or under them.

     158. This does not affect the right of a person to challenge an award under the provisions of the Arbitration Act 1996 as applied to this Scheme.

Enforcement
     159. -

    (1) Section 66 of the Arbitration Act 1996[8] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection(1) for "tribunal pursuant to an arbitration agreement" substitute "arbitrator pursuant to the Scheme (except for an award of reinstatement or re-engagement)".

    (3) In subsection (3) for "(see section 73)" substitute "(see section XXV of the Scheme)".

    (4) After subsection (4) insert -

(5)

In this section -

"the court" means the High Court or a county court; and

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

160. Awards of reinstatement or re-engagement will be enforced by the employment tribunal in accordance with section 117 of the Employment Rights Act 1996 (enforcement by award of compensation).

Interest
161. Awards of compensation that are not paid within 42 days of the date on which the award was despatched by ACAS to the Employer will attract interest on the same basis as for employment tribunal awards.

XXIV. CHALLENGING THE AWARD
Challenges on grounds of substantive jurisdiction
     162. -

    (1) Section 67 of the Arbitration Act 1996 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1) -

(a)

for "(upon notice to the other parties and to the tribunal) apply to the court" substitute "(upon notice to the other party, to the arbitrator and to ACAS) apply to the High Court or the Central London County Court";

(b)

for "(see section 73)" substitute "(see section XXV of the Scheme)";

(c)

after "section 70(2) and (3)" insert "as modified for the purposes of the Scheme".

(3) After subsection (1) insert -

(1A)

In this section -

"Arbitration Agreement" means an agreement to refer a dispute to arbitration in accordance with, and satisfying the requirements of, the Scheme

"the Scheme" means the arbitration scheme set out in the Schedule to the ACAS Arbitration Scheme (England and Wales) Order 2001; and

"substantive jurisdiction" means any issue as to -

(a)

the validity of the Arbitration Agreement and the application of the Scheme to the dispute or difference in question;

(b)

the constitution of the arbitral tribunal; or

(c)

the matters which have been submitted to arbitration in accordance with the Arbitration Agreement.

Challenges for serious irregularity
     163. -

    (1) Section 68 of the Arbitration Act 1996[9] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1) -

(a)

for "(upon notice to the other parties and to the tribunal) apply to the court" substitute "(upon notice to the other party, to the arbitrator and to ACAS) apply to the High Court or Central London County Court";

(b)

for "(see section 73)" substitute "(see Part XXV of the Scheme)";

(c)

after "section 70(2) and (3)" insert "as modified for the purposes of the Scheme".

(3) In subsection (2) -

(a)

in paragraph (a) for "section 33 (general duty of tribunal)" substitute "Part IX of the Scheme (General Duty of the Arbitrator)";

(b)

in paragraph (b) after "see section 67" insert "as modified for the purposes of the Scheme";

(c)

in paragraph (c) for "agreed by the parties" substitute "as set out in the Scheme";

(d)

in paragraph (e) for "any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award" substitute "ACAS";

(e)

omit paragraph (h);

(f)

in paragraph (i) for "any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award" substitute "ACAS".

(4) In subsection (3) -

(a)

in paragraph (b) insert "vary the award or" before "set the award aside";

(b)

omit "The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.".

(5) After subsection (4) insert -

(5)

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

Appeals on questions of EC law and the Human Rights Act 1998
     164. -

    (1) Section 69 of the Arbitration Act 1996[10] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1) -

(a)

omit "Unless otherwise agreed by the parties";

(b)

for "(upon notice to the other parties and to the tribunal) appeal to the court" substitute "(upon notice to the other party, to the arbitrator and to ACAS) appeal to the High Court or Central London County Court";

(c)

for "a question of law" substitute "a question (a) of EC law, or (b) concerning the application of the Human Rights Act 1998";

(d)

omit "An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.".

(3) In subsection (2) after "section 70(2) and (3)" insert "as modified for the purposes of the Scheme".

(4) In subsection (3) -

(a)

omit paragraph (b);

(b)

in paragraph (c) after the words "on the basis of the findings of fact in the award" insert ", in so far as the question for appeal raises a point of EC law, the point is capable of serious argument, and in so far as the question for appeal does not raise a point of EC law".

(5) In subsection (7) omit "The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.".

(6) After subsection (8) insert -

(9)

In this section -

"EC law" means -

(a)

any enactment in the domestic legislation of England and Wales giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties, and

(b)

any such rights, powers, liabilities, obligations and restrictions which are not given effect by any such enactment; and

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

Time limits and other procedural restrictions on challenges to awards
     165. -

    (1) Section 70 of the Arbitration Act 199611� shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1) after "section 67, 68 or 69" insert "(as modified for the purposes of the Scheme)".

    (3) In subsection (2) -

(a)

omit paragraph (a);

(b)

in paragraph (b) for "section 57 (correction of award or additional award)" substitute "section XXII of the Scheme (Correction of Awards)".

    (4) In subsection (3) for "of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process" substitute "the award was despatched to the applicant or appellant by ACAS".

    (5) Omit subsection (5).

    (6) After subsection (8) insert -

(9)

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

Common law challenges and saving
     166. Sections 81(1)(c) and 81(2) of the Arbitration Act 1996[11] shall apply to arbitrations conducted in accordance with the Scheme.

Challenge or appeal: effect of order of the court
     167. -

    (1) Section 71 of the Arbitration Act 1996 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications .

    (2) In subsection (1) after "section 67, 68 and 69" insert "(as modified for the purposes of the Scheme)".

    (3) After subsection (3) insert -

(3A)

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

(4) Omit subsection (4).

XXV. LOSS OF RIGHT TO OBJECT
168. If a party to arbitral proceedings under this Scheme takes part, or continues to take part, in the proceedings without making, either forthwith or within such time as is allowed by the arbitrator or by any provision in this Scheme, any objection:

he or she may not raise that objection later, before the arbitrator or the court, unless he or she shows that, at the time he or she took part or continued to take part in the proceedings, he or she did not know and could not with reasonable diligence have discovered the grounds for the objection.

XXVI. IMMUNITY
     169. An arbitrator under this Scheme is not liable for anything done or omitted in the discharge or purported discharge of his or her functions as arbitrator unless the act or omission is shown to have been in bad faith. This applies to a legal adviser appointed by ACAS as it applies to the arbitrator himself or herself.

     170. ACAS, by reason of having appointed an arbitrator or nominated a legal adviser, is not liable for anything done or omitted by the arbitrator or legal adviser in the discharge or purported discharge of his or her functions.

XXVII. MISCELLANEOUS PROVISIONS
Requirements in connection with legal proceedings
     171. -

    (1) Sections 80(1), (2), (4), (5), (6) and (7) of the Arbitration Act 199613� shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modification.

    (2) In subsection (1) for "to the other parties to the arbitral proceedings, or to the tribunal" substitute "to the other party to the arbitral proceedings, or to the arbitrator, or to ACAS".

Service of documents and notices on ACAS or the ACAS Arbitration Section
     172. Any notice or other document required or authorised to be given or served on ACAS or the ACAS Arbitration Section for the purposes of the arbitral proceedings shall be sent by pre-paid post to the following address:

ACAS Arbitration Section

ACAS Head Office

Brandon House

180 Borough High Street

London SE1 1LW

or transmitted by facsimile, addressed to the ACAS Arbitration Section, at the number stipulated in the ACAS Guide to the Scheme,

or

     173. Paragraph 172 (above) does not apply to the service of documents on the ACAS Arbitration Section for the purposes of legal proceedings.

Service of documents or notices on any other person or entity (other than ACAS or the ACAS Arbitration Section)
     174. Any notice or other document required or authorised to be given or served on any person or entity (other than ACAS or the ACAS Arbitration Section) for the purposes of the arbitral proceedings may be served by any effective means.

     175. If such a notice or other document is addressed, pre-paid and delivered by post:

it shall be treated as effectively served.

     176. Paragraphs 174 and 175 (above) do not apply to the service of documents for the purposes of legal proceedings, for which provision is made by rules of court.

Powers of court in relation to service of documents
     177. -

    (1) Section 77 of the Arbitration Act 1996[12] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1) omit "in the manner agreed by the parties, or in accordance with provisions of section 76 having effect in default of agreement,".

    (3) In subsection (2) for "Unless otherwise agreed by the parties, the court" substitute "The High Court or Central London County Court".

    (4) In subsection (3) for "Any party to the arbitration agreement may apply" substitute "ACAS or any party to the arbitration agreement may apply".

Reckoning periods of time
     178. -

    (1) Sections 78(2), (3), (4) and (5) of the Arbitration Act 1996 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modification.

    (2) In subsection (2) -

(a)

omit "If or to the extent that there is no such agreement,";

(b)

after "periods of time" insert "provided for in any provision of this Part".

XXVIII TERRITORIAL OPERATION OF THE SCHEME
     179. The Scheme applies to disputes involving an Employer who resides or carries on business in England and Wales.

APPENDIX A
WAIVER OF RIGHTS

The ACAS Arbitration Scheme ("the Scheme") is entirely voluntary. In agreeing to refer a dispute to arbitration under the Scheme, both parties agree to waive rights that they would otherwise have if, for example, they had referred their dispute to the employment tribunal. This follows from the informal nature of the Scheme, which is designed to be a confidential, relatively fast, cost-efficient and non-legalistic process.

As required by section VI of the Scheme, as a confirmation of the parties' agreement to waive their rights, this form must be completed by each party and submitted to ACAS together with the agreement to arbitration.

A detailed description of the informal nature of arbitration under the Scheme, and the important differences between this and the employment tribunal, is contained in the ACAS Guide to the Scheme ("the ACAS Guide"), which should be read by each party before completing this form.

The Scheme is not intended for disputes involving complex legal issues, or questions of EC law. Parties to such disputes are strongly advised to consider applying to the employment tribunal, or settling their dispute by other means.

This form does not list all the differences between the Scheme and the employment tribunal, or all of the features of the Scheme to which each party agrees in referring their dispute to arbitration.

I,
the Applicant / Respondent / Respondent's duly authorised representative [delete as appropriate] confirm my agreement to each of the following points:

     1. Unlike proceedings in the employment tribunal, all proceedings under the Scheme, including all hearings, are conducted in private. There are no public hearings, and the final award will be confidential.

     2. All arbitrators under the Scheme are appointed by ACAS from the ACAS Arbitration Panel (which is a panel of impartial, mainly non-lawyer, arbitrators appointed by ACAS on fixed, but renewable, terms). The appointment process and the ACAS Arbitration Panel is described in the Scheme and the ACAS Guide. Neither party will have any choice of arbitrator.

     3. Proceedings under the Scheme are conducted differently from the employment tribunal. In particular:

informal

- the attendance of witnesses and the production of documents cannot be compelled (although failure to co-operate may be taken into account by the arbitrator);

- there will be no oaths or affirmations, and no cross-examination of witnesses by parties or their representatives;

- the arbitrator will take the initiative in asking questions and ascertaining the facts (with the aim of ensuring that all relevant issues are considered), as well as hearing each side's arguments;

- the arbitrator's decision will only contain the main considerations that have led to the result; it will not contain full or detailed reasons;

- the arbitrator has no power to order interim relief.

     4. Once parties have agreed to refer their dispute to arbitration in accordance with the Scheme, the parties cannot then return to the employment tribunal.

     5. In deciding whether or not the dismissal was fair or unfair, the arbitrator shall have regard to general principles of fairness and good conduct in employment relations (including, for example, principles referred to in any relevant ACAS "Disciplinary and Grievance Procedures" Code of Practice or "Discipline at Work" Handbook). Unlike the employment tribunal, the arbitrator will not apply strict legal tests or rules (e.g. court decisions or legislation), with certain limited exceptions set out in the Scheme (see e.g. paragraph 12).

Similarly, in cases that do not involve EC law, the arbitrator will calculate compensation or award any other remedy in accordance with the terms of the Scheme, instead of applying strict legal tests or rules.

     6. Unlike the employment tribunal, there is no right of appeal from awards of arbitrators under the Scheme (except for a limited right to appeal questions of EC law and, aside from procedural matters set out in the Scheme, questions concerning the Human Rights Act 1998 ).

     7. Unlike the employment tribunal, in agreeing to arbitration under the Scheme, parties agree that there is no jurisdictional argument, i.e. no reason why the claim cannot be heard and determined by the arbitrator. In particular, the arbitrator will assume that a dismissal has taken place, and will only consider whether or not this was unfair. This is explained further in the Scheme and in the ACAS Guide.

SIGNED: