Acas Arbitration Scheme Q&A
We've put together a list of questions and answers about the Acas Arbitration Scheme to let you know more about how it all works.
Are there circumstances in which the Scheme might not be suitable?
The Scheme isn't suitable where there is a dispute over whether the employment tribunal has jurisdiction to hear the case. For example, whether, in a case of alleged unfair dismissal:
- the applicant was an employee of the employer
- the employee had the necessary period of service to bring a claim
- a dismissal actually took place
- the claim was made within the specified time limits.
When agreeing to go to arbitration under the Scheme, both parties are agreeing as a condition that no such jurisdictional issue is in dispute between them. The arbitrator will not deal with such issues, even if they are raised by the parties, during the arbitration process.
Additionally, if the parties are unclear about complex legal issues, for example, whether or not the employer is responsible for the employee's service with another employer because of the operation of the Transfer of Undertakings Regulations, the Scheme should not be used. If any jurisdictional dispute exists or if the parties are unclear over complex legal issues, the case should be heard by an employment tribunal.
The Scheme is not intended for cases that raise questions of EC law, such as unfair dismissal claims based on an EC right, like sex discrimination or working time. Such claims should go to an employment tribunal rather than an arbitration hearing.
What will the agreement to go to arbitration say?
The agreement to go to arbitration must be in writing, and must state that the parties have agreed to submit the dispute to arbitration in accordance with the Acas Scheme. In agreeing to use the Scheme, the parties accept all provisions of the Scheme, including the Terms of Reference, and that the arbitrator's decision is final and binding. They are also accepting the way in which the arbitration and the hearing itself will be conducted, as explained in Conciliation for individuals. Parties cannot ask or require the arbitrator to do anything or make any award not covered by the Scheme.
A suggested wording for Arbitration Agreements is included in our pdf guides to different aspects of the Scheme. If you would like help reaching agreement to use the Scheme, please call us on 020 7210 3742 or email email@example.com.
What other forms must be completed?
Both parties must sign a waiver form to waive certain rights they would otherwise have had under an employment tribunal, eg the right to a public hearing and to cross-examine witnesses. This confirms the parties understand and accept the arbitration process.
We want to settle a claim for unpaid wages and make an agreement for the unfair dismissal claim to go to arbitration: can this be done?
Yes, but the settlement of the unpaid wages claim must be recorded separately from the agreement go to arbitration. It is recommended that you record the agreement to go to arbitration on a separate document to avoid any confusion.
How do we tell Acas we have agreed to have our case heard by an arbitrator?
All concluded agreements must be sent to the Arbitration Section at Acas National as soon as possible and certainly within two weeks from when the agreement was concluded. Parties or their representatives should ensure that the agreement forms, waivers, copies of the ET1 and ET3 forms if relevant, and any supporting documentation are sent to Acas. Where an agreement to go to arbitration has been reached with an Acas conciliator, the conciliator will send the documents directly.
Is there any time limit for notifying Acas?
You should send your agreement as soon as possible, but no later than two weeks from the date on which the agreement to go to arbitration was concluded (the date it was signed or if signed by different people on different dates, the date of the last signature).
We don't have to provide a hearing under the Scheme if we're notified after this period, and if we don't accept the request, the former employee may not be able to have the case heard by an employment tribunal.
Having agreed to go to arbitration, can the agreement be withdrawn?
Yes, the employee is free to withdraw from the arbitration process at any time by writing to the Acas Arbitration Section. They would not normally be able to re-open the original claim to the employment tribunal, since this has been disposed of by the agreement to go to arbitration.
The employer cannot withdraw from the process without the agreement of the employee.
Can we agree to settle the case before or during the arbitration hearing?
Yes. Parties may agree to settle the case and ask the arbitrator to make an award based on the terms of their settlement. The arbitrator can only do this if it covers items they have the power to award under the Scheme. Alternatively, the parties can settle the dispute privately, on any terms that they wish, and then the employee can have the case withdrawn by Acas.
What does Acas do when it is notified of an agreement to go to arbitration?
We will appoint an arbitrator from our panel and arrange a hearing date at a suitable venue. The Scheme does not allow a decision to be made on written evidence alone.
Will we be allowed to choose the arbitrator appointed to hear the case?
No. However, if a party feels that there are exceptional circumstances which may affect the named arbitrator's ability to be impartial, for example if they have a connection with one of the parties, contact the Acas Arbitration Section immediately. Acas arbitrators are under a duty to disclose any actual or perceived conflict of interest, and will not be appointed to hear a case if a real conflict of interest is identified.
Where will the hearing be held?
We will aim to arrange the hearing in a convenient location, usually at a neutral venue such as Acas premises or a hotel. However, where the parties are in agreement, the hearing can be held at the employee's former workplace, or at the premises of a representative such as a trade union or an employers' association. Acas will meet reasonable costs of hiring premises where this is necessary.
What if either party has any particular requirements?
If either party has any particular requirements such as the need for wheelchair access or mobility concerns, inform Acas as soon as possible so we can take these into account when arranging the venue.
What happens if the proposed date or venue for the hearing is unsuitable?
Parties are expected to co-operate by agreeing a date and venue for the hearing that are suitable for both sides and the arbitrator. This must happen within twenty-eight days of Acas being notified of the agreement - if not, the arbitrator can set the date and/or venue. Once finalised, parties cannot unilaterally vary the arrangements, although if they are unsuitable they may apply to the arbitrator in writing within 14 days, to ask them to review their decision. If the application for review is rejected, the original arrangements will stand.
What happens if one or both parties does not attend the hearing?
If one or both of the parties cannot attend, the arbitrator has the power to adjourn the hearing or to proceed taking into account any written submissions or documents. If it is the employee who does not attend, the arbitrator may write to them requesting an explanation. If they are not satisfied with the explanation they can then dismiss the case.
Can parties claim any expenses in connection with attending the hearing?
No. Both parties must meet their own travelling expenses and those of anybody they call to help them present their case. No loss of earnings will be payable by Acas to anyone involved in the arbitration process. However, if the arbitrator finds that a dismissal was unfair, they can award a sum to cover costs incurred by the employee in attending the hearing, eg loss of earnings and travelling costs.
Should we give details of our cases before the hearing?
Yes. Arbitrators can only reach their conclusions after considering all the facts and arguments put to them. No advantage is gained by refusing to exchange statements or other supporting documents, or by trying to hold back information. It is in your interests to provide a brief, clearly set out, written statement of your case (in addition to the ET1 and ET3 if relevant). Information on what the written statement should contain, and when it should be sent, will be given to each party once their application has been received, and is contained in the Guide to the Scheme. If you are unable to produce a written statement, this will not count against you.
Can parties call witnesses at the hearing?
You should consider whether you want anyone present who could support your case from their personal experience, make a statement about events, speak about their role in any disciplinary proceedings, or inform the arbitrator about the organisation's or industry's rules, practices or procedures. In some cases it may be sufficient to submit a signed statement from the person rather than ask them to attend the hearing.
Does the employer have to allow workers time off for the hearing?
Employers should co-operate by allowing current employees reasonable time off from work if they can provide relevant information. The arbitrator has no power to order anybody to attend the hearing, but it may count against the employer if they have unreasonably refused time off in these circumstances.
Can parties be represented at the hearing?
Yes. Parties can bring anyone they wish to help them to present their case, although no special status will be given to legal representatives. Parties or their representatives will not be allowed to cross-examine the other party or anybody that they have called to help them put their case. The arbitrator has the right to address questions directly to either party, and to anybody else who is attending the hearing to speak on their behalf.
What happens if particular assistance is required at the hearing?
If parties require an interpreter, signer, communicator etc, they should inform Acas Arbitration Section as soon as possible so that it can be arranged, with the agreement of the arbitrator. In these circumstances Acas will pay reasonable costs for any such assistance.
In which language will the proceedings be conducted?
The proceedings will generally be in English, however, where the provisions of the Welsh Language Act 1993 apply, Acas will offer parties a choice of language for the proceeding. For arbitrations in Wales a Welsh-speaking arbitrator or a translator will be provided where requested.
Who will be present at the hearing?
Each party, plus anybody either party wishes to call or who is helping them to present their case. The hearing will be in private. In addition to the arbitrator an Acas official or an arbitrator in training may, with the consent of the parties, sometimes be present. In cases where the arbitrator has requested the appointment of a legal adviser to advise on matters of EC law or the Human Rights Act 1998, the adviser may attend the hearing.
How long will the hearing last?
Hearings will normally last about half a day, although the arbitrator has power to adjourn if necessary. The arbitrator can also call a preliminary hearing in extreme cases. This is where the arbitrator feels that there may be considerable differences between the parties, for example over the provision of documents or the availability of someone called to speak at the hearing.
How will the arbitrator conduct the hearing?
Hearings are informal, with the arbitrator deciding all procedural and evidential matters during the hearing. The rules of evidence that apply in the courts will not apply. You will be given full opportunity to outline your arguments, refer to any relevant documents submitted, and call anyone you wish to speak on your behalf. The arbitrator will not ask speakers to swear an oath or affirmation. Usually one person presents each party's case, but other members of your team may be asked to give supporting statements and be questioned by the arbitrator.
The arbitrator will adopt a questioning approach and, although there will be no direct cross-examination, you may suggest questions to be put to the other party. The arbitrator will also assist anyone having difficulties in fully explaining their case. Each party will be allowed to summarise their main arguments for consideration.
Are parties able to put further evidence to the arbitrator once the hearing is over?
How will the arbitrator decide the outcome of the case?
The arbitrator will decide each case in accordance with the standard terms of reference. These cannot be varied by either party. The arbitrator will carefully consider the arguments and information presented by both parties before and during the hearing, making use of their own knowledge and experience of good employment practice. In dismissal cases they will look at the circumstances in light of our Code of Practice - Disciplinary and grievance procedures [1Mb] and the Discipline and grievances at work: The Acas guide [1Mb]. In flexible working cases they will consider relevant Acas guidance as well as the Flexible Working Regulations. Having considered all these factors they will decide whether the dismissal was fair or unfair. This decision will not be based on legal tests or precedent, except in cases where EC law or matters under the Human Rights Act 1998 are relevant.
They will not decide what they would have done and then say that the employer should have done the same.
In a case of alleged unfair dismissal, what will the arbitrator award if they decide that the dismissal was unfair?
If the arbitrator finds that the dismissal was unfair, they have the power to award reinstatement or re-engagement with or without compensation. If reinstatement or re-engagement are not sought by the former employee or are not considered appropriate by the arbitrator, they can award compensation.
In a case of alleged Unfair Dismissal, what will the arbitrator take into account before deciding whether to award reinstatement or re-engagement?
The arbitrator will take into account:
- the employee's wishes
- whether the employee can return to work for the employer
- in cases where the employee was partly to blame for the dismissal, whether or not it would be just to make such an award.
Where an award of reinstatement or re-engagement is made, the arbitrator will take into account items that employment tribunals specify when making such awards, and the employee's continuity of employment will be preserved in the same way that it is by employment tribunal awards.
In a case about a request to work flexibly, what will the arbitrator award if they decide in favour of the employee?
If the arbitrator finds in favour of the employee, they have the power to award reconsideration of the request to work flexibly, with or without financial compensation.
How will awards of compensation be calculated?
On the basis of what the arbitrator considers just and equitable in the circumstances of the case. They will take into account any statutory limits on compensation imposed on employment tribunals. Compensation will be calculated on the same general principles as those made by employment tribunals. Details of these principles are contained in our pdf guides to different aspects of the Schemes.
What happens if the employer will not comply with the arbitrator's award?
Awards of compensation are enforceable in the County Court. Where an employer does not pay compensation awarded by the arbitrator they will be required to pay simple interest calculated in the same way as applies to employment tribunal awards.
In a case of alleged Unfair Dismissal, where an arbitration award for reinstatement or re-engagement of the former employee has been made and not complied with, the employee should refer the matter to an employment tribunal for an additional award, awarded as if the decision had been made by the Tribunal.
In a case about a request to work flexibly, if an order to re-consider the request is not abided by, or a further breach of the regulations occurs, the employee can make a fresh application to the employment tribunal.
How soon after the hearing will parties know the arbitrator's award?
The arbitrator's award will be in writing and will include reference to the main considerations taken into account in reaching the decision. The award will be issued by Acas to both parties or their nominated advisers at the same time, within three weeks of it being signed and dated by the arbitrator.
Will the arbitrator's award be published?
No. However, Acas maintains confidential records of cases, decisions and awards for monitoring and evaluation purposes, and may publish general summary information concerning the Scheme, without identifying individual cases.
Can parties appeal against the arbitrator's award?
There is no appeal on a point of law or fact in respect of the arbitrator's award, which is final and binding on the parties. The only exception to this is a narrow one with respect to points of EC law and matters under the Human Rights Act 1998.
Are there any other grounds on which parties can challenge the arbitrator's award?
Challenges may only be made in very limited circumstances, on the ground of:
- substantive jurisdiction, such as the validity of the Arbitration Agreement, and whether the dispute was within the scope of the Scheme
- serious irregularity that has caused or will cause substantial injustice to the party(s) making the challenge, eg relating to the arbitrator's conduct, the hearing process or the way the dispute was determined.