# The ACAS Arbitration Scheme (Great Britain) Order 2004 S.I. 2004/753 · made 9 March 2004 · revised to 6 April 2014 This Order sets out a revised scheme, submitted to the Secretary of State by ACAS pursuant to section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992, providing for arbitrations 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 (unfair dismissal). The Order revokes and replaces a previous Order which extended to England and Wales only (the “ACAS Arbitration Scheme (England and Wales) Order 2001”). This Order extends to Great Britain. The Order provides for the revised Scheme to come into effect on 6th April 2004. The revised Scheme will provide from that date a voluntary alternative to the employment tribunal for the resolution of unfair dismissal disputes by arbitration where both parties agree. The Order contains a transitional provision under which arbitration agreements signed before 6th April 2004 will continue to be determined under the Scheme set out in the 2001 Order. Made under: Trade Union and Labour Relations (Consolidation) Act 1992 (Section 212A); Employment Rights Act 1996 PDFs: Printed copy https://openlegislation.uk/acas-arbitration-scheme-great-britain-order-2004/pdf/uksi_20040753_en.pdf ## Introductory text TERMS AND CONDITIONS OF EMPLOYMENT Made 9th March 2004 Laid before Parliament 15th March 2004 Coming into force 6th April 2004 Whereas— (1) Under section 212A(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“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 (unfair dismissal); (2) In pursuance of sections 212A(1) and (3) of the 1992 Act, ACAS has prepared a revised version of an arbitration scheme for unfair dismissal cases; (3) In pursuance of section 212A(3) of the 1992 Act, ACAS has submitted a draft of the revised scheme to the Secretary of State and the Secretary of State approves the revised scheme; Now, therefore, the Secretary of State, in exercise of the powers conferred on her by sections 212A(1), (3), (6), (7), (8) and (9) of the 1992 Act, hereby makes the following Order:— ## 1 Citation, commencement, interpretation and extent (1) This Order may be cited as the ACAS Arbitration Scheme (Great Britain) Order 2004 and shall come into force on 6th April 2004. (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 139 to 146 of the Scheme; “English/Welsh arbitration” means an arbitration under the Scheme, which the parties have agreed shall be determined under the laws of England and Wales; “the Scheme” means the arbitration scheme set out in the Schedule with the exception of paragraphs 52EW, 110EW, 183EW, 187EW, 194EW, 200EW, 205EW, 209EW, 212EW, 217EW, 223EW and 224EW thereof; “Scottish arbitration” means an arbitration under the Scheme, which the parties have agreed shall be determined according to the laws of Scotland. (3) This Order extends to Great Britain; (4) Paragraphs in the Schedule marked “EW” apply only to English/Welsh arbitrations; (5) Paragraphs in the Schedule marked “S” apply only to Scottish arbitrations; (6) Paragraphs in the Schedule not marked “EW” or “S” apply to both English/Welsh arbitrations and Scottish arbitrations. ## 2 Commencement of the Scheme The Scheme shall come into effect on 6th April 2004. ## 3 Revocation Subject to article 8, the ACAS Arbitration Scheme (England and Wales) Order 2001 is revoked. ## 4 Application of Part I of the Arbitration Act 1996 The provisions of Part I of the Arbitration Act 1996 referred to in the Schedule at paragraphs 52EW, 110EW, 183EW, 187EW, 194EW, 200EW, 205EW, 209EW, 212EW, 217EW, 223EW and 224EW and shown in italics shall, as modified in those paragraphs, apply to English/Welsh arbitrations conducted in accordance with the Scheme. ## 5 (1) Section 46(1)(b) of the Arbitration Act 1996 shall apply to English/Welsh 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 17 of the arbitration scheme set out in the Schedule to the ACAS Arbitration Scheme (Great Britain) Order 2004”. ## 6 Enforcement of re-employment orders (1) Employment tribunals shall enforce re-employment orders made in arbitrations conducted in accordance with the Scheme in accordance with section 117 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 123(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 131(i) or 134(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 131(i) or 134(iv) of the Scheme. (12) In this section “the Scheme” means the arbitration scheme set out in the Schedule to the ACAS Arbitration Scheme (Great Britain) Order 2004.”. ## 7 Awards of compensation 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) 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). ## 8 Transitional provision (1) The Scheme has effect in any case where the appropriate date falls on or after 6th April 2004. (2) In a case where the appropriate date falls before 6th April 2004, the arbitration scheme set out in the Schedule to the ACAS Arbitration Scheme (England and Wales) Order 2001 continues to apply. (3) In this article, the “appropriate date” means the date of the Arbitration Agreement. Where the parties sign the Arbitration Agreement on different dates, the appropriate date is the date of the first signature. (4) In this article, “Arbitration Agreement” means an agreement to submit the dispute to arbitration, as defined in paragraph 26 of the Scheme. ## Signature Gerry Sutcliffe, Parliamentary Under Secretary of State for Employment Relations, Competition and Consumers Department of Trade and Industry 9th March 2004 ## Schedule: ACAS ARBITRATION SCHEME ## CONTENTS Paragraphs I INTRODUCTION 1-5 II THE ROLE OF ACAS 6 Routing of communications 7-8 III TERMS AND ABBREVIATIONS 9-15 IV APPLICATION OF THE SCHEME 16 V ARBITRATORS' TERMS OF REFERENCE 17 VI SCOPE OF THE SCHEME 18-24 Cases that are covered by the Scheme 18-20 Waiver of jurisdictional issues 21-23 Inappropriate cases 24 VII ACCESS TO THE SCHEME 25 Requirements for entry into the Scheme 26-28 Notification to ACAS of an Arbitration Agreement 29-32 Consolidation of proceedings 33 VIII SETTLEMENT AND WITHDRAWAL FROM THE SCHEME 34 Withdrawal by the Employee 34 Withdrawal by the Employer 35 Settlement 36-40S IX APPOINTMENT OF AN ARBITRATOR 41 The ACAS Arbitration Panel 41 Appointment to a case 42-43 Arbitrator’s duty of disclosure 44-45 Removal of arbitrators: English/Welsh arbitrations 46EW-53EW Removal of arbitrators: Scottish arbitrations 54S-59S Death of an arbitrator 60 Replacement of arbitrators 61-62 X GENERAL DUTY OF THE ARBITRATOR 63-64 XI GENERAL DUTY OF THE PARTIES 65 XII CONFIDENTIALITY AND PRIVACY 66-67 XIII ARRANGEMENTS FOR THE HEARING 68 Initial arrangements 68-71 Expedited hearings 72 Venue 73-74 Assistance 75 Travelling expenses/loss of earnings 76-77 Applications for postponements of, or different venues for, initial hearings 78-80 XIV NON-COMPLIANCE WITH PROCEDURE 81 XV OUTLINE OF PROCEDURE BEFORE THE HEARING 82 Written materials 83-88 Submissions, evidence and witnesses not previously notified 89-90 Requests for documents 91 Requests for attendance of witnesses 92 Preliminary hearings and directions 93-94 XVI OUTLINE OF PROCEDURE AT THE HEARING 95 Arbitrator’s overall discretion 95 Language 96 Witnesses 97 Examination by the arbitrator 98 Explanation of available remedies 99 Representatives 100 Strict rules of evidence 101 Interim relief 102 Non-attendance at the hearing 103-104 Post-hearing written materials 105 XVII QUESTIONS OF EC LAW, DEVOLUTION ISSUES AND THE HUMAN RIGHTS ACT 1998 106 Appointment of legal adviser 106-109 Court determination of preliminary points: English/Welsh arbitrations 110EW Court determination of preliminary points: Scottish arbitrations 111S-112S XVIII AUTOMATIC UNFAIRNESS 113 XIX AWARDS 114 Form of the award: English/Welsh arbitrations 114EW-116EW Form of the award: Scottish arbitrations 117S-119S Awards on different issues 120-122 Remedies 123-124 XX AWARDS OF REINSTATEMENT OR RE-ENGAGEMENT 125 Definitions 125-126 Choice of remedy 127-129 Permanent replacements 130 Reinstatement 131-133 Re-engagement 134-135 Continuity of employment 136 XXI AWARDS OF COMPENSATION 137-138 The basic amount 139-146 Minimum basic amounts in certain cases 147-148 Basic amount of two weeks' pay in certain cases 149-150 Reductions to the basic amount 151-155 The compensatory amount 156-159 Reductions to the compensatory amount 160-161 Internal appeal procedures 162-165 Limits on the compensatory amount 166-167 Double recovery 168 XXII ISSUE OF AWARDS AND CONFIDENTIALITY 169-170 XXIII CORRECTION OF AWARDS 171 Scrutiny of awards by ACAS 171 Correction by the arbitrator 172-179 XXIV EFFECT OF AWARDS, ENFORCEMENT AND INTEREST 180 Effect of awards 180-182S Enforcement 183EW-185 Interest 186 XXV CHALLENGING THE AWARD 187EW Challenges on grounds of substantive jurisdiction: English/Welsh arbitrations 187EW Challenges on grounds of substantive jurisdiction: Scottish arbitrations 188S-193S Challenges for serious irregularity: English/Welsh arbitrations 194EW Challenges for serious irregularity: Scottish arbitrations 195S-199S Appeals on questions of EC law, devolution issues and the Human Rights Act 1998: English/Welsh arbitrations 200EW Appeals on questions of EC law, devolution issues and the Human Rights Act 1998: Scottish Arbitrations 201S-204S Time limits and other procedural restrictions on challenges to awards: English/Welsh arbitrations 205EW Time limits and procedural restrictions on challenges to awards: Scottish arbitrations 206S-208S Common law challenges and saving 209EW-210S Exclusion of stated case procedure 211S Challenge or appeal: effect of order of the court 212EW-213S XXVI LOSS OF RIGHT TO OBJECT 214 XXVII IMMUNITY 215-216 XXVIII MISCELLANEOUS PROVISIONS 217EW Requirements in connection with legal proceedings 217EW Service of documents and notices on ACAS or the ACAS Arbitration Section 218-219 Service of documents or notices on any other person or entity 220-222 Powers of court in relation to service of documents 223EW Reckoning periods of time 224EW-225S XXIX GOVERNING LAW 226EW-227S APPENDIX A: WAIVER OF RIGHTS: English/Welsh Arbitrations APPENDIX B: WAIVER OF RIGHTS: Scottish Arbitrations ## 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 and Grievances 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 (eg, the Human Rights Act 1998, devolution issues, existing law in the field of arbitration and EC law). ## 5 The Scheme accommodates certain differences between the law of Scotland and the law of England and Wales relating to arbitrations generally. It does so by providing, to the extent necessary in order to accommodate those differences, separate provisions applicable to Scottish arbitrations on the one hand and to English or Welsh arbitrations on the other. For convenience, paragraphs that apply only to Scottish arbitrations are marked “S” and paragraphs that apply only to English or Welsh arbitrations are marked “EW”. ## 6 As more fully explained below, cases enter the Scheme by reference to ACAS, which appoints an arbitrator from a panel (see paragraphs 41 to 43 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. ## 7 Unless in the course of a hearing, all communications between either party and the arbitrator shall be sent via the ACAS Arbitration Section. ## 8 Paragraph 218 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. ## 9 The term “Employee” is used to denote the claimant (ie 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. ## 10 The term “Employer” is used to denote the respondent. ## 11 The term “EC law” means: (i) any enactment in the domestic legislation of England and Wales or of Scotland giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties, and (ii) any such rights, powers, liabilities, obligations and restrictions, which are not given effect by any such enactment. ## 12 The term “English/Welsh arbitration” means an arbitration under this Scheme, which the parties have agreed shall be an English/Welsh arbitration. ## 13 The term “Scottish arbitration” means an arbitration under this Scheme, which the parties have agreed shall be a Scottish arbitration. ## 14 The term “devolution issue” means a devolution issue as defined in paragraph 1 of Schedule 6 to the Scotland Act 1998 or a devolution issue as defined in paragraph 1 of Schedule 8 to the Government of Wales Act 1998. ## 15 With the exception of paragraphs 26(i) (“Requirements for entry into the Scheme”), 114EW (“Form of the award: English/Welsh arbitrations”) and 117S (“Form of the award: Scottish arbitrations”) below, references to anything being written or in writing include its being recorded by any means so as to be usable for subsequent reference. ## 16 Paragraphs 46EW, 47EW, 48EW, 49EW, 50EW, 51EW, 52EW, 53EW, 110EW, 114EW, 115EW, 116EW, 177EW, 181EW, 183EW, 187EW, 194EW, 200EW, 205EW, 209EW, 212EW, 217EW, 223EW, 224EW and 226EW below shall apply only to English/Welsh arbitrations. Paragraphs 54S, 55S, 56S, 57S, 58S, 59S, 111S, 112S, 117S, 118S, 119S, 178S, 182S, 184S, 188S, 189S, 190S, 191S, 192S, 193S, 195S, 196S, 197S, 198S, 199S, 201S, 202S, 203S, 204S, 206S, 207S, 208S, 210S, 211S, 213S, 225S and 227S below shall apply only to Scottish arbitrations. ## 17 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: (i)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 and Grievances at Work” Handbook), instead of applying legal tests or rules (eg court decisions or legislation); (ii)apply EC law. The arbitrator shall not decide the case by substituting what he or she would have done for the actions taken by the Employer. If the arbitrator finds the dismissal unfair, he or she shall determine the appropriate remedy under the terms of this Scheme. ## 18 This Scheme only applies to cases of alleged unfair dismissal (ie 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). ## 19 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. ## 20 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. ## 21 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. ## 22 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. ## 23 In particular, in agreeing to arbitration under the Scheme, the parties will be treated as having agreed that a dismissal has taken place. ## 24 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. ## 25 The Scheme is an entirely voluntary system of dispute resolution: it will only apply if parties have so agreed. ## 26 Any agreement to submit a dispute to arbitration under the Scheme must satisfy the following requirements (an “Arbitration Agreement”): (i) the agreement of each party (which may be expressed in the same or in separate documents) must be in writing; (ii) the agreement must concern an existing dispute; (iii) the agreement must not seek to alter or vary any provision of the Scheme; (iv) the agreement must have been reached either: (a) where a conciliation officer has taken action under any of sections 18A to 18C of the Employment Tribunals Act 1996, or (b) through a settlement agreement, where the conditions regulating such agreements under the Employment Rights Act 1996 are satisfied; and (v) the agreement must be accompanied by a completed Waiver Form for each party. Parties applying for English/Welsh arbitrations should complete Appendix A; parties applying for Scottish arbitrations should complete Appendix B. ## 27 Where an agreement fails to satisfy any one of these requirements or where the parties are unable to agree whether the arbitration should be an English/Welsh arbitration or a Scottish arbitration, 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. ## 28 Where: (i) a dispute concerning unfair dismissal claims as well as other claims has been referred to the employment tribunal, and (ii) the parties have agreed to settle the other claims and refer the unfair dismissal claim to arbitration under the Scheme, 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). ## 29 All Arbitration Agreements must be notified to ACAS within two 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. ## 30 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. ## 31 Where an Arbitration Agreement is not notified to ACAS within two 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. ## 32 Any such hearing and award will be governed by the provisions of this Scheme. ## 33 Where all parties so agree in writing, ACAS may consolidate different arbitral proceedings under the Scheme. ## 34 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 and the arbitrator shall upon receipt of such withdrawal in writing issue an award dismissing the claim. ## 35 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. ## 36 Parties are free to reach an agreement settling the dispute at any stage. ## 37 If such an agreement is reached: (i) upon the joint written request of the parties to the arbitrator or the ACAS Arbitration Section, the arbitrator (if appointed) or the ACAS Arbitration Section (if no arbitrator has been appointed) shall terminate the arbitration proceedings; (ii) if so requested by the parties, the arbitrator (if appointed) may record the settlement in the form of an agreed award. ## 38 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. ## 39 If the agreement settling the dispute includes an agreement that one party (the “paying party”) shall pay a sum of money to the other (the “receiving party”) the arbitrator shall (unless the parties have agreed that the said agreement shall not be the subject of an award) draft an award ordaining the paying party to pay the agreed sum to the receiving party together (if the parties have agreed that interest shall run on the agreed sum) with interest thereon at such rate as the parties may have agreed and from such date or dates as the parties may have agreed until payment. The arbitrator shall send a copy of the said award in draft to each party and invite each party to confirm that the draft award accurately reflects the agreement between them. Upon receiving confirmation to that effect the arbitrator shall issue an award in the terms of the agreed draft. ## 40 Subject to paragraph 39, in rendering an agreed award, the arbitrator: (i) may only record the parties' agreed wording; (ii) may not approve, vary, transcribe, interpret or ratify a settlement in any way; (iii) may not record any settlement beyond the scope of the Scheme, the Arbitration Agreement or the reference to the Scheme as initially accepted by ACAS. ## 41 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. ## 42 Arbitral appointments are made exclusively by ACAS from the ACAS Arbitration Panel. Parties will have no choice of arbitrator. ## 43 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. ## 44 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. ## 45 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. ## 46EW An arbitrator in an English/Welsh arbitration may only be removed by ACAS or the court (under the provisions in paragraphs 47EW to 53EW below). ## 47EW 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, or on the basis that such removal has been agreed by both parties, shall be made in the first instance to ACAS (addressed to the ACAS Arbitration Section). ## 48EW At the same time as an application is made to ACAS to remove an arbitrator a copy of the application shall be sent to the other party to the arbitration and to the arbitrator. ## 49EW ACAS shall, following receipt of an application under paragraph 48EW, give the other party to the arbitration and the arbitrator such opportunity as ACAS in its sole discretion may consider appropriate to comment on the application. ## 50EW ACAS may, after such procedures as ACAS in its sole discretion may consider appropriate, remove the arbitrator. ## 51EW If ACAS refuses an application made under paragraph 47EW, a party may thereafter apply to the court. ## 52EW Sections 24(1)(a) and (c), 24(2), 24(3), 24(5) and 24(6) of the Arbitration Act 1996 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications: (i) 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”. (ii) 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,”; and (b) for “that institution or person” substitute “ACAS”. ## 53EW 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. ## 54S An arbitrator in a Scottish arbitration may be removed by ACAS under the provisions in paragraphs 55S to 58S below. ## 55S An application under the Scheme to remove an arbitrator shall be made to ACAS (addressed to the ACAS Arbitration Section). At the same time as the application is sent to ACAS a copy of the application shall be sent to the other party to the arbitration and to the arbitrator. ## 56S ACAS shall, following receipt of an application under paragraph 55S give the other party to the arbitration and the arbitrator such opportunity as ACAS in its sole discretion may consider appropriate to comment on the application. ## 57S ACAS may, after such procedure as ACAS in its sole discretion may consider appropriate, remove the arbitrator if it is satisfied: (i) that both parties to the arbitration agree that the arbitrator should be removed; or (ii) that circumstances exist that give rise to justifiable doubts as to the impartiality of the arbitrator; or (iii) that the arbitrator is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his capacity to do so. ## 58S A decision of ACAS made under paragraph 57S shall be final. ## 59S The arbitrator may continue the proceedings and make an award while an application to ACAS to remove him or her is pending. ## 60 The authority of an arbitrator is personal and ceases on his or her death. ## 61 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. ## 62 Once appointed, the replacement arbitrator shall determine whether and, if so, to what extent the previous proceedings should stand. ## 63 The arbitrator shall: (i) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his or her case and dealing with that of his or her opponent, and (ii) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. ## 64 The arbitrator shall comply with the general duty (see paragraph 63 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. ## 65 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. ## 66 Arbitrations, and all associated procedures under the Scheme, are strictly private and confidential. This rule does not prevent a party to the arbitration taking any step reasonably necessary for the purposes of any application to the court or enforcement of an award. ## 67 Hearings may only be attended by the arbitrator, the parties, their representatives, any interpreters, signers or communicators, witnesses and a legal adviser, if appointed. If the parties so agree, an ACAS official or arbitrator in training may also attend. ## 68 A hearing must be held in every case, notwithstanding any agreement between the parties to a purely written procedure. ## 69 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. ## 70 The arbitrator shall decide the date and venue for the hearing, in so far as an agreement cannot be reached with all parties within 28 days of the initial notification to ACAS of the Arbitration Agreement. ## 71 The ACAS Arbitration Section shall contact all parties with details of the date and venue for the hearing. ## 72 If: (i) before the parties have agreed to refer a dispute to arbitration under the Scheme, an employment tribunal makes an order under interim relief provisions, or (ii) in the arbitrator’s discretion, other relevant circumstances exist, the arbitrator may expedite the hearing, on the application of any party. ## 73 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. ## 74 Where premises have to be hired for a hearing, ACAS shall meet the reasonable costs of so doing. ## 75 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. ## 76 Every party shall meet their own travelling expenses and those of their representatives and witnesses. ## 77 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. ## 78 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 or, where this is not practicable, as soon as is reasonably practicable. 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. ## 79 If the application is rejected, the initial hearing will be held on the original date and/or in the original venue. ## 80 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. ## 81 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 Part XI above, the arbitrator may (in addition to any other power set out in this Scheme): (i) adjourn any hearing, where it would be unfair on any party to proceed; and/or (ii) draw such adverse inferences from the act of non-compliance as the circumstances justify. ## 82 Once a hearing has been fixed, the following procedure shall apply, subject to any direction by the arbitrator. ### Written materials ## 83 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: (i) any supporting documentation or other material to be relied upon at the hearing; and where appropriate (ii) a list of the names and title/role of all those people who will accompany each party to the hearing or be called as a witness. ## 84 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. ## 85 Supporting documentation or other material may include (without limitation) copies of: (i) contracts of employment; (ii) letters of appointment; (iii) written statement of particulars of employment; (iv) time sheets and attendance records; (v) performance appraisal reports; (vi) warning and dismissal letters; (vii) written reasons for dismissal, where these have been given; (viii) company handbooks, rules and procedures; (ix) any information which will help the arbitrator to assess compensation, including (without limitation): (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; (x) signed statements of any witnesses or outlines of evidence to be given by witnesses at the hearing. ## 86 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. ## 87 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. ## 88 No information on the conciliation process, if any, shall be disclosed by an ACAS conciliator to the arbitrator. ## 89 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 83 above) may only be relied upon at the hearing with the arbitrator’s permission. ## 90 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. ## 91 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. ## 92 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. ## 93 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. ## 94 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. ## 95 Subject to the arbitrator’s general duty (Part X 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. ## 96 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 75 above if the Welsh language is to be used. ## 97 No party or witness shall be cross-examined by a party or representative, or examined on oath or affirmation. ## 98 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. ## 99 In every case, the arbitrator shall: (i) explain to the Employee what orders for reinstatement or re-engagement may be made in an award and under what circumstances these may be granted; and (ii) ask the Employee whether he or she wishes the arbitrator to make such an award. ## 100 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. ## 101 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. ## 102 The arbitrator shall have no power to order provisional or interim relief, but may expedite the proceedings where appropriate. ## 103 If, without showing sufficient cause, a party fails to attend or be represented at a hearing, the arbitrator may: (i) continue the hearing in that party’s absence, and in such a case shall take into account any written submissions and documents that have already been submitted by that party; or (ii) adjourn the hearing. ## 104 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. ## 105 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. ## 106 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 or any devolution issue that, in the arbitrator’s view and subject to paragraph 17 above (Arbitrator’s Terms of Reference), might be involved and relevant to the resolution of the dispute. ## 107 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 44 and 45 above. ## 108 The arbitrator shall allow the legal adviser to attend the proceedings, and may order an adjournment and/or change in venue to facilitate this. ## 109 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. ## 110EW Section 45 of the Arbitration Act 1996 shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications: (i) 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, or (c) any devolution issue”; and (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.”; (ii) omit sub-paragraph (i) from subsection (2)(b); (iii) omit subsection (4); and (iv) 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. (8) In this section “devolution issue” means a devolution issue as defined in paragraph 1 Schedule 6 to the Scotland Act 1998 or a devolution issue as defined in paragraph 1 Schedule 8 to the Government of Wales Act 1998.”. ## 111S The arbitrator may make a reference to the Court of Session for determination as a preliminary point— (i) of any question of EC law, (ii) of any question concerning the application of the Human Rights Act 1998, or (iii) of any devolution issue which substantially affects the rights of one or more of the parties to the arbitration. ## 112S The arbitrator shall not make a reference under paragraph 111S unless: (i) both parties have applied for or have agreed to the making of the reference; or (ii) if an application for the reference has been made by one party and opposed by the other party, the arbitrator is satisfied that the application has been made without delay. ## 113 In deciding whether the dismissal was fair or unfair, subject to paragraph 17 above (Arbitrator’s Terms of Reference), the arbitrator shall have regard to: (i) any provision of Part X of the Employment Rights Act 1996 (as amended from time to time) requiring a dismissal for a particular reason to be regarded as unfair, and (ii) any other legislative provision requiring a dismissal for a particular reason to be regarded as unfair for the purpose of Part X of the Employment Rights Act 1996. ## 114EW The award in an English/Welsh arbitration shall be in writing, signed by the arbitrator. ## 115EW The award (unless it is an agreed award) shall: (i) identify the reason (or, if more than one, the principal reason) for the dismissal (or, in a redundancy case, the reason for which the employee was selected for dismissal); (ii) contain the main considerations which were taken into account in reaching the decision that the dismissal was fair or unfair; (iii) state the decision(s) of the arbitrator; (iv) state the remedy awarded, together with an explanation; (v) state the date when it was made. ## 116EW If the award contains an order for the payment of money the award shall— (i) order the Employer to pay the Employee the amount of the award of compensation; and (ii) order the Employer to pay interest thereon in accordance with paragraph 186 of the Scheme. ## 117S The award in a Scottish arbitration shall— (i) be in writing; (ii) state the date upon which it was made; (iii) specify the arbitrator’s order; (iv) be signed by the arbitrator; (v) be signed by a witness to the arbitrator’s signature; and (vi) specify the name and address of the witness. ## 118S If the award contains an order for the payment of money the award shall— (i) ordain the Employer to pay to the Employee the amount of the award of compensation; and (ii) ordain the Employer to pay interest thereon in accordance with paragraph 186 of the Scheme. ## 119S The arbitrator shall issue with his award (unless it is an agreed award) a Note, which shall— (i) identify the reason (or, if more than one, the principal reason) for the dismissal (or, in a redundancy case, the reason for which the employee was selected for dismissal); (ii) contain the main considerations which were taken into account in reaching the decision that the dismissal was fair or unfair; (iii) state the decision(s) of the arbitrator; (iv) state the remedy awarded, together with an explanation; (v) state the date when the Note was issued; and (vi) be signed by the arbitrator. ## 120 The arbitrator may make more than one award at different times on different aspects of the matters to be determined. ## 121 The arbitrator may, in particular, make an award relating: (i) to an issue affecting the whole claim, or (ii) to a part only of the claim submitted to him or her for decision. ## 122 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. ## 123 In the event that the arbitrator finds that the dismissal was unfair: (i) if the Employee expresses such a wish, the arbitrator may make, in an award, an order for reinstatement or re-engagement (in accordance with the provisions below); or (ii) if no such order for reinstatement or re-engagement is made, the arbitrator shall make an award of compensation (calculated in accordance with the provisions below) to be paid by the Employer to the Employee. ## 124 In cases where the arbitrator finds that the dismissal was unfair by reason of the operation of EC law, the arbitrator shall in an English/Welsh arbitration apply the relevant provisions of English law and shall in a Scottish arbitration apply the relevant provisions of Scots law with respect to remedies for unfair dismissal, in so far as these may differ from Parts XX and XXI of the Scheme. ## 125 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. ## 126 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. ## 127 In exercising his or her discretion with respect to the remedy to be awarded under paragraph 123(i) above, the arbitrator shall first consider whether to make an order for reinstatement, and in so doing shall take into account: (i) whether the Employee wishes to be reinstated; (ii) whether it is practicable for the Employer to comply with an order for reinstatement; and (iii) where the Employee caused or contributed to some extent to the dismissal, whether it would be just to order his or her reinstatement. ## 128 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: (i) any wish expressed by the Employee as to the nature of the order to be made; (ii) whether it is practicable for the Employer (or a successor or an associated employer) to comply with an order for re-engagement, and (iii) where the Employee caused or contributed to some extent to the dismissal, whether it would be just to order his or her re-engagement and, if so, on what terms. ## 129 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 127(iii) above). ## 130 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 127(ii) and 128(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: (i) that it was not practicable for him or her to arrange for the dismissed Employee’s work to be done without engaging a permanent replacement, or (ii) that: (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. ## 131 On making an order for reinstatement, the arbitrator shall specify: (i) any amount payable by the Employer in respect of any benefit which the Employee might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement, (ii) any rights and privileges (including seniority and pension rights) which must be restored to the Employee, and (iii) the date by which the order must be complied with. ## 132 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. ## 133 In calculating for the purposes of paragraph 131(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: (i) wages in lieu of notice or ex gratia payments paid by the Employer, or (ii) remuneration paid in respect of employment with another employer, and such other benefits as the arbitrator thinks appropriate in the circumstances. ## 134 On making an order for re-engagement the arbitrator shall specify the terms on which re-engagement is to take place, including: (i) the identity of the employer, (ii) the nature of the employment, (iii) the remuneration for the employment, (iv) any amount payable by the employer in respect of any benefit which the Employee might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement, (v) any rights and privileges (including seniority and pension rights) which must be restored to the Employee, and (vi) the date by which the order must be complied with. ## 135 In calculating, for the purposes of paragraph 131(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: (i) wages in lieu of notice or ex gratia payments paid by the Employer, or (ii) remuneration paid in respect of employment with another employer, and such other benefits as the arbitrator thinks appropriate in the circumstances. ## 136 The Employee’s continuity of employment will be preserved in the same way as it would be under an award of the employment tribunal. ## 137 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. ## 138 Where paragraph 163 below applies, an award of compensation shall also include a supplementary amount. ## 139 Subject to the following provisions, the basic amount shall be calculated by: (i) determining the period, ending with the effective date of termination (see paragraph 140 below), during which the Employee has been continuously employed (see paragraph 141 below), (ii) reckoning backwards from the end of that period the number of years of employment falling within that period, and (iii) allowing the appropriate amount (see paragraph 142 below) for each of those years of employment. ## 140 As to the “effective date of termination”: (i) the “effective date of termination” means: (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. (ii) Where: (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 140(i) above), the later date is the effective date of termination. (iii) In paragraph 140(ii)(b) above, “the material date” means: (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. (iv) Where: (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 140(i) above), the later date is the effective date of termination. (v) In paragraph 140(iv) above, “the material date” means: (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. ## 141 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). ## 142 The “appropriate amount” means: (i) one and a half weeks' pay for a year of employment in which the Employee was not below the age of forty-one, (ii) one week’s pay for a year of employment (not within sub-paragraph (i) above) in which he or she was not below the age of twenty-two, and (iii) half a week’s pay for a year of employment not within sub-paragraphs (i) or (ii) above. ## 143 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. ## 144 Where twenty years of employment have been reckoned under paragraph 139 above, no account shall be taken under that paragraph of any year of employment earlier than those twenty years. ## 145 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 139, 142 and 144 above shall be reduced by the “appropriate fraction” (see paragraph 146 below). ## 146 The “appropriate fraction” means the fraction of which: (i) the numerator is the number of whole months reckoned from the sixty-fourth anniversary of the day of the Employee’s birth in the period beginning with that anniversary and ending with the effective date of termination (see paragraph 140 above), and (ii) the denominator is twelve. ## 147 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 150(i) below), for selecting the Employee for dismissal, or otherwise, for the dismissal was one of the following: Health and safety cases (i)having been designated by the Employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the Employee carried out (or proposed to carry out) any such activities; (ii)being a representative of workers on matters of health and safety at work or a member of a safety committee: (a)in accordance with arrangements established under or by virtue of any enactment, or (b)by reason of being acknowledged as such by the Employer, the Employee performed (or proposed to perform) any functions as such a representative or a member of such a committee; Working time cases (iii)being: (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 (iv)being a trustee of a relevant occupational pension scheme which relates to his or her employment, the Employee performed (or proposed to perform) any functions as such a trustee; Employee representatives (v)being: (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 13, 15 and 16 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (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; (vi)the Employee took part in an election of employee representatives for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or regulations 13, 15 and 16 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended from time to time); Union membership or activities (vii)the Employee: (a)was, or proposed to become, a member of an independent trade union, or (b)had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or (c)was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused, or proposed to refuse, to become or remain a member. (viii)for the purposes of paragraphs (vii) above to (xi) below, in defining the terms “trade union” and “independent trade union”, the arbitrator shall have regard to sections 1 and 5 of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended from time to time. (ix)for the purposes of paragraph (vii)(b) above, an “appropriate time” means: (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. (x)where the reason, or one of the reasons, for the dismissal was: (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. (xi)references in paragraphs (vii) to (x) above to being, becoming or ceasing to remain a member of a trade union include references to being, becoming or ceasing to remain a member of a particular branch or section of that union or of one of a number of particular branches or sections of that trade union; and references to taking part in the activities of a trade union shall be similarly construed. Other categories (xii)where the reason or principal reason for the dismissal of the Employee qualifies under any other applicable legislative provision for a minimum basic award. ## 148 Before any reductions are taken into account under paragraphs 151 to 155 below (“Reductions to the basic amount”), the “minimum basic amount” shall not be less than: (i) in cases within paragraph 147(i), (ii), (iii), (iv), (v) and (vi) above, the amount provided for in section 120(1) of the Employment Rights Act 1996, as amended from time to time; (ii) in cases within paragraph 147(vii) above, the amount provided for in section 156 of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended from time to time; (iii) in cases within paragraph 147(xii) above, the amount provided for in the relevant legislation. ## 149 Where: (i) the arbitrator finds that the reason (or, where there is more than one, the principal reason) for the dismissal of the Employee is that he or she was redundant and (ii) the Employee: (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 143 above). ## 150 For the purposes of this Scheme: (i) for the definition of “redundancy”, the arbitrator shall have regard to section 139 of the Employment Rights Act 1996, as amended from time to time; (ii) for the definition of “redundancy payment”, the arbitrator shall have regard to Part XI of the Employment Rights Act 1996, as amended from time to time. ## 151 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. ## 152 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. ## 153 The preceding paragraph does not apply in a redundancy case (see paragraph 150(i) above) unless the reason for selecting the Employee for dismissal was one of those specified in paragraph 147 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 147 above. ## 154 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. ## 155 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). ## 156 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. ## 157 The loss referred to in paragraph 156 above shall be taken to include: (i) any expenses reasonably incurred by the Employee in consequence of the dismissal; and (ii) subject to sub-paragraph (iii) below, loss of any benefit which he or she might reasonably be expected to have had but for the dismissal; (iii) in respect of any loss of: (a) any entitlement or potential entitlement to a payment on account of dismissal by reason of redundancy (whether in pursuance of Part XI of the Employment Rights Act 1996, as amended from time to time, or otherwise); or (b) any expectation of such a payment 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 151 to 155 above (“Reductions to the basic amount”)). ## 158 In ascertaining the loss referred to in paragraph 152 above, the arbitrator shall apply the principle that a person has a duty to mitigate his or her loss. ## 159 In determining, for the purposes of paragraph 152 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: (i) calling, organising, procuring or financing a strike or other industrial action, or (ii) threatening to do so, was exercised on the Employer to dismiss the Employee; and that question shall be determined as if no such pressure had been exercised. ## 160 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. ## 161 If: (i) any payment was 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); and (ii) the amount of such a payment exceeds the basic amount that would have been payable under the provisions set out above (excluding for this purpose reductions on account of redundancy payments (see paragraph 150 above)), that excess goes to reduce the compensatory amount. ## 162 Where an award of compensation is to be made, and the arbitrator finds that: (i) the Employer provided a procedure for appealing against dismissal; and (ii) the Employee was, at the time of the dismissal or within a reasonable period afterwards, given written notice stating that the Employer provided the procedure and including details of it; but (iii) the Employee did not appeal against the dismissal under the procedure (otherwise than because the Employer prevented him or her from doing so), 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. ## 163 Where an award of compensation is to be made, and the arbitrator finds that: (i) the Employer provided a procedure for appealing against dismissal; but (ii) the Employer prevented the Employee from appealing against the dismissal under the procedure, the award of compensation shall include a supplementary amount, being such amount (if any) as the arbitrator considers just and equitable. ## 164 In determining the amount of a reduction under paragraph 162 above or a supplementary amount under paragraph 163 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. ## 165 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 143 above). ## 166 With the exception of: (i) cases falling within sections 100 or 105(3) (Health and Safety Cases) of the Employment Rights Act 1996, as amended from time to time; and (ii) cases where the reason (or, if more than one, the principal reason): (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 (iii) cases falling within any other exception to the statutory limit, 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. ## 167 The limit referred to above applies to the amount which the arbitrator would award (apart from paragraph 166 above) in respect of the subject matter of the complaint, after taking into account: (i) any payment made by the Employer to the Employee in respect of that matter, and (ii) any reduction in the amount of the award required by any enactment or rule of law. ## 168 Where the same acts of the Employer are relied upon by the Employee: (i) to ground a claim for unfair dismissal in arbitration as well as (ii) to ground a claim in the employment tribunal for discrimination (under the Sex Discrimination Act 1975 and/or the Race Relations Act 1976 and/or the Disability Discrimination Act 1995, and/or any other relevant Act or subordinate legislation), 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. In this regard, the arbitrator shall have regard to any information supplied by the parties under paragraph 86 above. ## 169 The arbitrator’s award shall be sent by ACAS to both parties. ## 170 Subject to any steps which may be reasonably necessary for the purposes of any application to the Court or enforcement of the award, 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. ## 171 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. ## 172 The arbitrator may, on his or her own initiative or on the application of a party or ACAS: (i) correct the award so as to remove any clerical or computational mistake, or error arising from an accidental slip or omission, or to clarify or remove any ambiguity in the award, or (ii) make an additional award in respect of any part of the claim which was presented to the arbitrator but was not dealt with in the award. ## 173 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. ## 174 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. ## 175 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. ## 176 Any additional award shall be made within 56 days of the date of the original award. 177EW. Any additional award in an English/Welsh arbitration shall so far as relevant comply with paragraphs 114EW, 115EW and 116EW. ## 178S Any additional award in a Scottish arbitration shall so far as relevant comply with paragraphs 117S and 118S. Any correction to an award shall be issued on a memorandum of correction which shall: (i) specify the correction; (ii) be signed by the arbitrator; (iii) be signed by a witness to the arbitrator’s signature; (iv) state the name and address of the witness; and (v) state the date upon which it was signed by the arbitrator. ## 179 Any correction of the award shall form part of the award. ## 180 Awards made by arbitrators under this Scheme are final and binding both on the parties and on any persons claiming through or under them. ## 181EW 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. ## 182S This does not affect the right of a person to challenge an award under Part XXV below. ## 183EW Section 66 of the Arbitration Act 1996 shall apply to English and Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications— (i) 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)”; (ii) in subsection (3), for “(see section 73)” substitute “(see Part XXVI of the Scheme)”; and (iii) 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 (Great Britain) Order 2004.”. ## 184S Any award requiring the payment of money which may be made in a Scottish arbitration under the Scheme may be registered for execution. ## 185 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). ## 186 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. ## 187EW Section 67 of the Arbitration Act 1996 shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications— (i) 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 Part XXVI of the Scheme)”; and (c) after “section 70(2) and (3)” insert “as modified for the purposes of the Scheme”; and (ii) 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 (Great Britain) Order 2004; 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.”. ## 188S A party to a Scottish arbitration may appeal to the Court of Session— (i) challenging any award of the arbitrator as to his or her substantive jurisdiction; or (ii) on the ground that an award made by the arbitrator on the merits is of no effect, in whole or in part, because the arbitrator did not have substantive jurisdiction. ## 189S A party may lose the right to appeal under paragraph 188S in accordance with Part XXVI below. ## 190S Appeals under paragraph 188S are subject to the provisions of paragraphs 206S, 207S and 208S below. ## 191S For the purposes of paragraph 188S “substantive jurisdiction” means any issue as to— (i) the validity of the Arbitration Agreement and the application of the Scheme to the dispute or difference in question; (ii) the constitution of the arbitral tribunal; or (iii) the matters which have been submitted to arbitration in accordance with the Arbitration Agreement. ## 192S The arbitrator may continue the arbitral proceedings and make a further award while an appeal to the Court under paragraph 188S is pending in relation to an award of the arbitrator as to his substantive jurisdiction. ## 193S On an appeal under paragraph 188S the Court may (without prejudice to any other power which it may exercise or remedy which it may grant)— (i) confirm the award; (ii) vary the award; (iii) declare the award to be of no effect in whole or in part; or (iv) reduce the award in whole or in part. ## 194EW Section 68 of the Arbitration Act 1996 shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications. (i) 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 XXVI of the Scheme)”; and (c) after “section 70(2) and (3)” insert “as modified for the purposes of the Scheme”; (ii) in subsection (2)(a), for “section 33 (general duty of tribunal)” substitute “Part X of the Scheme (General Duty of the Arbitrator)”; (iii) in subsection (2)(b), after “see section 67” insert “as modified for the purposes of the Scheme”; (iv) in subsection (2)(c), for “agreed by the parties” substitute “as set out in the Scheme”; (v) in subsection (2)(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”; (vi) omit paragraph (h) from subsection (2); (vii) in subsection (2)(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”; (viii) in subsection (3)(b) insert “vary the award or” before “set the award aside”; (ix) in subsection (3), 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.”; and (x) after subsection (4), insert— “(5) In this section, “the Scheme” means the arbitration scheme set out in the Schedule to the ACAS Arbitration Scheme (Great Britain) Order 2004.”. ## 195S A party to a Scottish arbitration may appeal to the Court of Session against an award in the proceedings on the ground of serious irregularity affecting the arbitrator, the proceedings or the award. ## 196S A party may lose the right to appeal under paragraph 195S above in accordance with Part XXVI below. ## 197S Appeals under paragraph 195S are subject to the provisions of paragraphs 206S, 207S and 208S. ## 198S For the purposes of paragraph 195S, “serious irregularity” means an irregularity of one or more of the following kinds which the Court considers has caused or will cause substantial injustice to the appellant— (i) failure by the arbitrator to comply with Part X above (General Duty of Arbitrator); (ii) the arbitrator exceeding his or her powers (otherwise than by exceeding its substantive jurisdiction (as defined in paragraph 191S above)); (iii) failure by the arbitrator to conduct the proceedings in accordance with the procedure set out in the Scheme; (iv) failure by the arbitrator to deal with all the issues put to him or her; (v) ACAS exceeding its powers; (vi) uncertainty or ambiguity as to the effect of the award; (vii) the award having been obtained by fraud or the way in which it was procured being contrary to public policy; or (viii) any irregularity in the conduct of the proceedings or in the award which is admitted by the arbitrator or ACAS. ## 199S If there is shown to be serious irregularity affecting the arbitrator, the proceedings or the award, the Court may (without prejudice to any other power which it may exercise or remedy which it may grant)— (i) remit the award to the arbitrator, in whole or in part, for reconsideration, (ii) vary the award, (iii) declare the award to be of no effect in whole or in part, or (iv) reduce the award in whole or in part. ## 200EW Section 69 of the Arbitration Act 1996 shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications— (i) 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 or (c) any devolution issue”; (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.”; (ii) In subsection (2), after “section 70(2) and (3)” insert “as modified for the purposes of the Scheme”; (iii) omit paragraph (b) from subsection (3); (iv) in subsection (3)(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”; (v) 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.”; and (vi) 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; “the Scheme” means the arbitration scheme set out in the Schedule to the ACAS Arbitration Scheme (Great Britain) Order 2004, and “devolution issue” means a devolution issue as defined in paragraph 1 of Schedule 6 to the Scotland Act 1998 or a devolution issue as defined in paragraph 1 of Schedule 8 of the Government of Wales Act 1998.” ## 201S A party to a Scottish arbitration may appeal to the Court of Session: (i) on a question of EC law, (ii) on a question concerning the application of the Human Rights Act 1998, or (iii) on a devolution issue arising out of an award made in the arbitration. ## 202S An appeal shall not be brought under paragraph 201S except— (i) with the agreement of all the other parties to the proceedings; or (ii) with the leave of the Court. ## 203S Leave to appeal shall be given only if the Court is satisfied— (i) that the determination of the question will substantially affect the rights of one or more of the parties; (ii) that on the basis of the findings of fact in the Note appended to the award, insofar as the question for appeal raises a point of EC law, the point is capable of serious argument, and insofar as the question for appeal does not raise a point of EC law: (a) the decision of the arbitrator on the question is obviously wrong, or (b) the question is one of general public importance and the decision of the arbitrator is at least open to serious doubt, and (iii) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the Court to determine the question. ## 204S On an appeal under paragraph 201S the Court may (without prejudice to any other power which it may exercise or remedy which it may grant)— (i) confirm the award, (ii) vary the award, (iii) remit the award to the arbitrator, in whole or in part, for reconsideration in light of the Court’s determination, (iv) declare the award to be of no effect in whole or in part, (v) reduce the award in whole or in part, or (vi) recall the award in whole or in part. ## 205EW Section 70 of the Arbitration Act 1996 shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications— (i) in subsection (1), after the words “section 67, 68 or 69” insert the words “(as modified for the purposes of the Scheme)”; (ii) omit paragraph (a) from subsection (2); (iii) in subsection (2)(b), for “section 57 (correction of award or additional award)” substitute “Part XXIII of the Scheme (Correction of Awards)”; (iv) for 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, or if an application for a correction or additional award under paragraph 172 has been made and declined, the date on which the arbitrator’s decision was despatched to the applicant or appellant by ACAS”; (v) omit subsection (5); (vi) after subsection (8), insert— “(9) In this section, “the Scheme” means the arbitration scheme set out in the Schedule to the ACAS Arbitration Scheme (Great Britain) Order 2004.” ## 206S An appeal under paragraphs 188S, 195S or 201S may not be brought if the appellant has not first exhausted any available recourse under Part XXIII of the Scheme (Correction of Awards). ## 207S An appeal under paragraphs 188S, 195S or (where the parties have agreed under paragraph 202S(i)) 201S or an application for leave to appeal under paragraph 202S(ii) shall be lodged within 28 days of whichever is the later of: (i) the date on which the award was despatched to the appellant by ACAS; (ii) where, a correction or additional award has been made in accordance with Part XXIII above, the date on which a memorandum of correction or additional award under Part XXIII above was despatched to the appellant by ACAS; and (iii) where a party has applied for a correction or additional award under paragraph 172 above but the arbitrator has declined to make any correction or additional award, the date on which intimation of the arbitrator’s decision was despatched to the appellant by ACAS. ## 208S If on an appeal under paragraphs 188S, 195S or 201S it appears to the Court that the award and the arbitrator’s Note: (i) do not contain the arbitrator’s reasons, or (ii) do not set out the arbitrator’s reasons in sufficient detail to enable the Court properly to consider the application or appeal, the Court may order the arbitrator to state the reasons for his or her award in sufficient detail for that purpose. ## 209EW Sections 81(1)(c) and 81(2) of the Arbitration Act 1996 shall apply to English/Welsh arbitrations conducted in accordance with the Scheme. ## 210S Nothing in this Part of the Scheme shall be construed as excluding the operation of any rule of law as to the refusal of recognition or enforcement of an arbitral award in a Scottish arbitration on grounds of public policy. ## 211S Section 3 of the Administration of Justice (Scotland) Act 1972 shall not apply to any arbitration under the Scheme. ## 212EW (1) Section 71 of the Arbitration Act 1996 shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications— (i) in subsection (1), after the words “section 67, 68 and 69” insert the words “(as modified for the purposes of the Scheme)”; (ii) after subsection (3), insert— “(3A) In this section, “the Scheme” means the arbitration scheme set out in the Schedule to the ACAS Arbitration Scheme (Great Britain) Order 2004. and;” (iii) omit subsection (4). ## 213S The following provisions have effect where the Court makes an order under paragraph 193S, 199S or 204S of the Scheme with respect to an award. (i) Where the award is varied, the variation has effect as part of the arbitrator’s award. (ii) Where the award is remitted to the arbitrator in whole or in part for reconsideration the arbitrator shall make a fresh award in respect of the matters remitted within three months of the date of the order for remission or such longer or shorter period as the Court may direct. ## 214 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: (i) in an English/Welsh arbitration, that the arbitrator lacks substantive jurisdiction as defined in paragraph 187EW, or in a Scottish arbitration that the arbitrator lacks substantive jurisdiction as defined in paragraph 191S, aside from any jurisdictional objection with respect to the circumstances of the dismissal, which will be waived in any event, as set out in paragraphs 21 to 23 above, (ii) that the proceedings have been improperly conducted, (iii) that there has been a failure to comply with the Arbitration Agreement or any provision of this Scheme, or (iv) that there has been any other irregularity affecting the arbitrator or the proceedings, 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. ## 215 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. ## 216 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. ## 217EW Sections 80(1), (2), (4), (5), (6) and (7) of the Arbitration Act 1996shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modification: 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”. ## 218 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 address in the ACAS Guide to the Scheme or transmitted by facsimile, addressed to the ACAS Arbitration Section, at the number stipulated in the ACAS Guide to the Scheme, or by electronic mail, at the address stipulated in the ACAS Guide to the Scheme. ## 219 Paragraph 218 does not apply to the service of documents on the ACAS Arbitration Section for the purposes of legal proceedings. ## 220 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. ## 221 If such a notice or other document is addressed, pre-paid and delivered by post: (i) to the addressee’s last known principal residence or, if he or she is or has been carrying on a trade, profession or business, his or her last known principal business address, or (ii) where the addressee is a body corporate, to the body’s registered or principal office, it shall be treated as effectively served. ## 222 Paragraphs 220 and 221 do not apply to the service of documents for the purposes of legal proceedings, for which provision is made by rules of court. ## 223EW Section 77 of the Arbitration Act 1996 shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications— (i) in subsection (1), for “in the manner agreed by the parties, or in accordance with provisions of section 76 having effect in default of agreement,” substitute “in accordance with paragraphs 220 and 221”; (ii) in subsection (2), for “Unless otherwise agreed by the parties, the court” substitute “The High Court or Central London County Court”; (iii) in subsection (3), for “Any party to the arbitration agreement may apply” substitute “ACAS or any party to the Arbitration Agreement may apply”. ## 224EW Sections 78(2), (3), (4) and (5) of the Arbitration Act 1996 shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modification to subsection (2) of that section. (i) omit “If or to the extent that there is no such agreement,”; (ii) after “periods of time” insert “provided for in any provision of this Part”. ## 225S Except as otherwise specified in the Scheme, periods of time shall in Scottish arbitrations be reckoned in accordance with the following provisions: (i) Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date; (ii) Where the act is required to be done a specified number of clear days after a specified date, at least that number of days must intervene between the day on which the act is done and that date; (iii) Where the period is a period of seven days or less which would include a Saturday, Sunday or a public holiday in the place where anything which has to be done within the period falls to be done, that day shall be excluded. (iv) In relation to Scotland a “public holiday” means a day which under the Banking and Financial Dealings Act 1971 is to be a bank holiday in Scotland and in relation to England and Wales or Northern Ireland a “public holiday” means Christmas Day, Good Friday or a day which under the Banking and Financial Dealings Act 1971 is to be a bank holiday in England and Wales or Northern Ireland as the case may be. ## 226EW The seat of an English/Welsh arbitration shall be England and Wales. The arbitrator may nevertheless hold any meeting or hearing or do any act in relation to the arbitration outside England and Wales. ## 227S The seat of a Scottish arbitration shall be Scotland. The arbitrator may nevertheless hold any meeting or hearing or do any act in relation to the arbitration outside Scotland. ## A Waiver of Rights English/Welsh Arbitrations 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 Part VII 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. There are differences between the law of England and Wales on the one hand and the law of Scotland on the other. The Scheme accordingly makes separate provision for English/Welsh arbitrations and Scottish arbitrations. This form confirms the parties' agreement that the arbitration between them will be an English/Welsh arbitration. ## B Waiver of Rights Scottish Arbitrations 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 Part VII 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. There are differences between the law of Scotland on the one hand and the law of England and Wales on the other. The Scheme accordingly makes separate provision for Scottish arbitrations and English/Welsh arbitrations. This form confirms the parties' agreement that the arbitration between them will be a Scottish arbitration and (as permitted in Scots law) that any award may be enforced by registration rather than by application to the Court. ## Explanatory note (This note is not part of the Order) This Order sets out a revised scheme, submitted to the Secretary of State by ACAS pursuant to section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992, providing for arbitrations 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 (unfair dismissal). The Order revokes and replaces a previous Order which extended to England and Wales only (the “ACAS Arbitration Scheme (England and Wales) Order 2001”). This Order extends to Great Britain. The Order provides for the revised Scheme to come into effect on 6th April 2004. The revised Scheme will provide from that date a voluntary alternative to the employment tribunal for the resolution of unfair dismissal disputes by arbitration where both parties agree. The Order contains a transitional provision under which arbitration agreements signed before 6th April 2004 will continue to be determined under the Scheme set out in the 2001 Order. The Order also provides— (a) for certain provisions of the Arbitration Act 1996, as modified by the Order, to apply to arbitrations conducted in accordance with the Scheme, where the parties have agreed that the arbitration will be determined according to the law of England and Wales; (b) for employment tribunals to enforce re-employment orders made in such arbitrations; and (c) for the award of a basic amount in such an arbitration to be treated as a basic award of compensation for unfair dismissal for the purposes of debts which the Secretary of State must satisfy, under Part XII of the Employment Rights Act 1996, if the employer has become insolvent. No regulatory impact assessment has been prepared in relation to this Order. The revised Scheme offers arbitration of unfair dismissal disputes to employers and employees in Scotland, an option already available to employers and employees in England and Wales under the previous Scheme. The impact of the previous Scheme on business has been low, and the revised Scheme is expected to have a similar impact. --- Source: https://www.legislation.gov.uk/uksi/2004/753 (the official version) Page: https://openlegislation.uk/acas-arbitration-scheme-great-britain-order-2004 Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.