2003 No. 694

TERMS AND CONDITIONS OF EMPLOYMENT, ENGLAND AND WALES

The ACAS (Flexible Working) Arbitration Scheme (England and Wales) Order 2003

Made13th March 2003

Laid before Parliament13th March 2003

Coming into force6th April 2003

Whereas—

Under section 212A(1) of the Trade Union and Labour Relations (Consolidation) Act 19921 (“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 section 80G(1) or section 80H(1)(b) of the Employment Rights Act 19962 (flexible working);

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

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

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

Citation, commencement, interpretation and extent1

1

This Order may be cited as the ACAS (Flexible Working) Arbitration Scheme (England and Wales) Order 2003 and shall come into force on 6th April 2003.

2

In this Order—

“the 1996 Act” means the Employment Rights Act 1996;
“the Scheme” means the arbitration scheme set out in the Schedule to this Order, with the exception of paragraphs 43, 93, 111, 113 to 118, 122, 128 and 129 thereof.

3

This Order extends to England and Wales.

Commencement of the Scheme2

The Scheme shall come into effect on 6th April 2003.

Application of Part I of the Arbitration Act 1996

3

The provisions of Part I of the Arbitration Act 19963 referred to in paragraphs 43, 93, 111, 113 to 118, 122, 128 and 129 of the Schedule and shown in italics shall, as modified in those paragraphs, apply to arbitrations conducted in accordance with the Scheme.

4

1

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

2

For “such other considerations as are agreed by them or determined by the tribunal” in section 46(1)(b) substitute “the Terms of Reference in paragraph 13 of the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (England and Wales) Order 2003”.

Alan Johnson,Minister for Employment Relations, Industry and the Regions,Department of Trade and Industry13th March 2003

SCHEDULEACAS Arbitration Scheme

Articles 2 and 3

CONTENTS

		Paragraphs
I.	INTRODUCTION	1–4
II.	THE ROLE OF ACAS	5
	Routing of communications	6–7
III.	TERMS AND ABBREVIATIONS	8–12
IV.	ARBITRATORS' TERMS OF REFERENCE	13
V.	SCOPE OF THE SCHEME
	Cases that are covered by the Scheme	14–16
	Waiver of jurisdictional issues	17–18
	Inappropriate cases	19
VI.	ACCESS TO THE SCHEME	20
	Requirements for entry into the Scheme	21–23
	Notification to ACAS of an Arbitration Agreement	24–27
	Consolidation of proceedings	28
VII.	SETTLEMENT AND WITHDRAWAL FROM THE SCHEME
	Withdrawal by the Employee	29
	Withdrawal by the Employer	30
	Settlement	31–34
VIII.	APPOINTMENT OF AN ARBITRATOR
	The ACAS Arbitration Panel	35
	Appointment to a case	36–37
	Arbitrator’s duty of disclosure	38–39
	Removal of arbitrators	40–44
	Death of an arbitrator	45
	Replacement of arbitrators	46–47
IX.	GENERAL DUTY OF THE ARBITRATOR	48–49
X.	GENERAL DUTY OF THE PARTIES	50
XI.	CONFIDENTIALITY AND PRIVACY	51–52
XII.	ARRANGEMENTS FOR THE HEARING
	Initial arrangements	53–56
	Expedited hearings	57
	Venue	58–59
	Assistance	60
	Travelling expenses/loss of earnings	61–62
	Applications for postponements of, or different venues for, initial hearings	63–65
XIII.	NON-COMPLIANCE WITH PROCEDURE	66
XIV.	OUTLINE OF PROCEDURE BEFORE THE HEARING	67
	Written materials	68–73
	Submissions, evidence and witnesses not previously notified	74–75
	Requests for documents	76
	Requests for attendance of witnesses	77
	Preliminary hearings and directions	78–79
XV.	OUTLINE OF PROCEDURE AT THE HEARING
	Arbitrator’s overall discretion	80
	Language	81
	Witnesses	82
	Examination by the arbitrator	83
	Representatives	84
	Strict rules of evidence	85
	Non-attendance at the hearing	86–87
	Post-hearing written materials	88
XVI.	QUESTIONS OF EC LAW AND THE HUMAN RIGHTS ACT 1998
	Appointment of legal adviser	89–92
	Court determination of preliminary points	93
XVII.	AWARDS
	Form of the award	94–95
	Remedies	96
XVIII.	AWARDS OF COMPENSATION	97–99
IXX.	ISSUE OF AWARDS AND CONFIDENTIALITY	100–101
XX.	CORRECTION OF AWARDS
	Scrutiny of awards by ACAS	102
	Correction by the arbitrator	103–108
XXI.	EFFECT OF AWARDS, ENFORCEMENT AND INTEREST
	Effect of awards	109–110
	Enforcement	111
	Interest	112
XXII.	CHALLENGING THE AWARD
	Challenges on grounds of substantive jurisdiction	113
	Challenges for serious irregularity	114
	Appeals on questions of EC law and the Human Rights Act 1998	115
	Time limits and other procedural restrictions on challenges to awards	116
	Common law challenges and saving	117
	Challenge or appeal: effect of order of the court	118
XXIII	LOSS OF RIGHT TO OBJECT	119
XXIV.	IMMUNITY	120–121
XXV.	MISCELLANEOUS PROVISIONS
	Requirements in connection with legal proceedings	122
	Service of documents and notices on ACAS or the ACAS Arbitration Section	123–124
	Service of documents or notices on any other person or entity	125–127
	Powers of court in relation to service of documents	128
	Reckoning periods of time	129XXVI.
	TERRITORIAL OPERATION OF THE SCHEME	130
	APPENDIX A: WAIVER OF RIGHTS

I.INTRODUCTION

1

The ACAS (Flexible Working) Arbitration Scheme (“the Scheme”) is implemented pursuant to section 212A of the Trade Union and Labour Relations (Consolidation) Act 19924 (“the 1992 Act”).

2

The Scheme provides a voluntary alternative, in the form of arbitration, to the employment tribunal for the resolution of disputes arising out of an employee’s application for a change in his terms and conditions of employment made under section 80F of the Employment Rights Act 1996 (“the 1996 Act”)5.

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. 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, and existing law in the field of arbitration and EC law).

II.THE ROLE OF ACAS

5

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

6

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

7

Paragraph 123 below sets out the manner in which any document, notice or communication must be served on, or transmitted to, ACAS or the ACAS Arbitration Section.

III.TERMS AND ABBREVIATIONS

8

The term “Employee” is used to denote the claimant, including any person entitled to pursue a claim arising out of a contravention, or alleged contravention, of section 80G(1) or 80H(1)(b) of the 1996 Act (flexible working)6.

9

The term “Employer” is used to denote the respondent.

10

The term “EC law” means:

i

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

ii

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

11

The term “Flexible Working Claim” means a claim by the Employee that his Employer has failed to deal with an application made under section 80F of the 1996 Act in accordance with section 80G(1) of that Act or that a decision by his Employer to reject the application was based on incorrect facts.

12

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

IV.ARBITRATOR'S TERMS OF REFERENCE

13

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 to uphold the Flexible Working Claim the arbitrator shall:—

i
have regard to relevant provisions of the Flexible Working (Procedural Requirements) Regulations 20027 and to any relevant ACAS Guidance;
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 upholds the Flexible Working Claim, he or she shall determine the appropriate remedy under the terms of this Scheme.

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

V.SCOPE OF THE SCHEME

Cases that are covered by the Scheme

14

This Scheme only applies to 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 section 80G(1) or section 80H(1)(b) of the 1996 Act.

15

The Scheme does not extend to other kinds of claim which may be related to, or raised at the same time as, a Flexible Working Claim. For example, sex discrimination cases are not covered by the Scheme.

16

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

Waiver of jurisdictional issues

17

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

whether or not the claimant is an employee of 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.

18

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.

Inappropriate cases19

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

VI.ACCESS TO THE SCHEME

20

The Scheme is an entirely voluntary system of dispute resolution: it will only apply if parties have so agreed.Requirements for entry into the Scheme

21

Any agreement to submit a dispute to arbitration under the Scheme must satisfy the following requirements (an “Arbitration Agreement”):

i

the agreement 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 section 18 of the Employment Tribunals Act 19968 (a “Conciliated Agreement”) or

b

through a compromise agreement, where the conditions regulating such agreements under the 1996 Act are satisfied (a “Compromise Agreement”);

v

the agreement must be accompanied by a completed Waiver Form for each party, in the form of Appendix A.

22

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

23

Where:

i

a dispute concerning a Flexible Working Claim 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 Flexible Working Claim to arbitration under the Scheme,

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

Notification to ACAS of an Arbitration Agreement

24

All Arbitration Agreements must be notified to ACAS within 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.

25

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

26

Where an Arbitration Agreement is not notified to ACAS within 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.

27

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

Consolidation of proceedings28

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

VII.SETTLEMENT AND WITHDRAWAL FROM THE SCHEME

Withdrawal by the Employee29

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 Flexible Working Claim may withdraw from the Scheme, provided that any such withdrawal is in writing. Such a withdrawal shall constitute a dismissal of the claim.

Withdrawal by the Employer30

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

Settlement

31

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

32

If such an agreement is reached:

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 (on a covering proforma).

33

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

34

In rendering an agreed award, the arbitrator:

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.

VIII.APPOINTMENT OF AN ARBITRATOR

The ACAS Arbitration Panel35

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

Appointment to a case

36

Arbitral appointments are made exclusively by ACAS from the ACAS Arbitration Panel. Parties will have no choice of arbitrator.

37

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

Arbitrator’s duty of disclosure

38

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

39

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

Removal of arbitrators

40

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

41

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

42

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

43

1

Sections 24(1)(a) and (c), 24(2), 24(3), 24(5) and 24(6) of the Arbitration Act 19969 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

2

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

3

In subsection (2)—

a

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

b

for “that institution or person” substitute “ACAS”.

44

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

Death of an arbitrator45

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

Replacement of arbitrators

46

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

47

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

IX.GENERAL DUTY OF THE ARBITRATOR

48

The arbitrator shall:—

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.

49

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

X.GENERAL DUTY OF THE PARTIES

50

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

XI.CONFIDENTIALITY AND PRIVACY

51

Arbitrations, and all associated procedures under the Scheme, are strictly private and confidential.

52

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

XII.ARRANGEMENTS FOR THE HEARING

Initial arrangements

53

A hearing must be held in every case, notwithstanding any agreement between the parties to a purely written procedure.

54

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

55

The arbitrator shall decide the date and venue for the hearing, in so far as an agreement cannot be reached with all parties within 28 days of the initial notification to ACAS of the Arbitration Agreement.

56

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

Expedited hearings57

On the application of any party, the arbitrator may, in his or her discretion, expedite the hearing.

Venue

58

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

59

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

Assistance60

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

Travelling expenses/loss of earnings

61

Every party shall meet their own travelling expenses and those of their representatives and witnesses.

62

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

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

63

Any application for a postponement of, or a different venue for, an initial hearing must be made in writing, with reasons, to the arbitrator via the ACAS Arbitration Section within 14 days of the date of the letter notifying the hearing arrangements 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.

64

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

65

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

XIII.NON-COMPLIANCE WITH PROCEDURE

66

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

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.

XIV.OUTLINE OF PROCEDURE BEFORE THE HEARING

67

Once a hearing has been fixed, the following procedure shall apply, subject to any direction by the arbitrator.Written materials

68

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

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.

69

Written statements of case should briefly set out the main particulars of each party’s case, which can then be expanded upon if necessary at the hearing itself. The statement should include an explanation of the events which led to the Flexible Working Claim being brought, including an account of the outcome of any relevant meetings.

70

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

i

the Employee’s application under section 80F of the 1996 Act

ii

contracts of employment

iii

notes of meetings held between employee and employer to consider application under section 80F

iv

letters of appointment

v

written statement of particulars of employment

vi

time sheets

vii

written reasons for refusing the Employee’s application under section 80F, where these have been given

viii

company handbooks, rules and procedures

ix

any other written information which may assist the arbitrator in deciding the Flexible Working claim

x

any information which will help the arbitrator to assess compensation, including (without limitation) pay slips, P60s or wage records

xi

signed statements of any witnesses or outlines of evidence to be given by witnesses at the hearing.

71

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

72

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

73

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

Submissions, evidence and witnesses not previously notified

74

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

75

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

Requests for documents76

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

Requests for attendance of witnesses77

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

Preliminary hearings and directions

78

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

79

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

XV.OUTLINE OF PROCEDURE AT THE HEARING

Arbitrator’s overall discretion80

Subject to the arbitrator’s general duty (section IX above), and subject to the points set out below, the conduct of the hearing and all procedural and evidential matters (including applications for adjournments and changes in venue) shall be for the arbitrator to decide.

Language81

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

Witnesses82

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

Examination by the arbitrator83

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.

Representatives84

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

Strict rules of evidence85

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.

Non-attendance at the hearing

86

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.

87

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

Post-hearing written materials88

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

XVI.QUESTIONS OF EC LAW AND THE HUMAN RIGHTS ACT 1998

Appointment of legal adviser

89

The arbitrator shall have the power, on the application of any party or of his or her own motion, to require the appointment of a legal adviser to assist with respect to any issue of EC law or the Human Rights Act 1998 that, in the arbitrator’s view and subject to paragraph 13 above (Arbitrator’s Terms of Reference), might be involved and relevant to the resolution of the dispute.

90

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

91

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

92

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

Court determination of preliminary points93

1

Section 45 of the Arbitration Act 199610 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

2

In subsection (1)—

a

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

b

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

c

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

3

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

4

Omit subsection (4).

5

After subsection (6), insert—

7
In this section “EC law” means—
a
any enactment in the domestic legislation of England and Wales giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties, and
b
any such rights, powers, liabilities, obligations and restrictions which are not given effect by any such enactment.

XVII.AWARDS

Form of the award

94

The award shall be in writing, signed by the arbitrator.

95

The award (unless it is an agreed award) shall:—

i

state the decision(s) of the arbitrator;

ii

contain the main considerations which were taken into account in reaching the decision(s);

iii

where an award is made, state the remedy awarded, together with an explanation;

iv

state the date when it was made.

Remedies96

In the event that the arbitrator upholds the Employee’s Flexible Working Claim, the arbitrator may make an award ordering:—

i

the reconsideration of the application made under section 80F of the 1996 Act; and/or

ii

compensation (subject to the limits provided for below) to be paid by the Employer to the Employee.

XVIII.AWARDS OF COMPENSATION

97

Subject to 98 below, when an arbitrator makes an award of compensation in respect of any contravention of section 80G(1) or 80H(1)(b) of the 1996 Act, whether or not in conjunction with an award for reconsideration, such compensation shall be such an amount, not exceeding 8 weeks' pay, as the arbitrator considers just and equitable in all the circumstances.

98

When an arbitrator makes an award of compensation in respect of breaches of Regulation 14(2) or (4) of the Flexible Working (Procedural Requirements) Regulations 200211 such compensation shall be such an amount, not exceeding 2 weeks' pay, as the arbitrator considers just and equitable in all the circumstances.

99

In calculating the amount of a week’s pay of an Employee, the arbitrator shall have regard to Chapter II of Part 14 of the 1996 Act, as amended from time to time, or any other relevant statutory provision applicable to the calculation of a week’s pay.

IXX.ISSUE OF AWARDS AND CONFIDENTIALITY

100

The arbitrator’s award shall be sent by ACAS to both parties.

101

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.

XX.CORRECTION OF AWARDS

Scrutiny of awards by ACAS102

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

Correction by the arbitrator

103

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.

104

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.

105

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.

106

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.

107

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

108

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

XXI.EFFECT OF AWARDS, ENFORCEMENT AND INTEREST

Effect of awards

109

Awards made by arbitrators under this Scheme are final and binding both on the parties and on any persons claiming through or under them.

110

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.

Enforcement111

1

Section 66 of the Arbitration Act 199612 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

2

In subsection (1) for “tribunal pursuant to an arbitration agreement” substitute “arbitrator pursuant to the Scheme”.

3

In subsection (3) for “(see section 73)” substitute “(see section XXIII of the Scheme”).

4

After subsection (4) insert—

5
In this section—
“the court” means the High Court or a county court; and
“the Scheme” means the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (England and Wales) Order 2003.

Interest112

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.

XXII.CHALLENGING THE AWARD

Challenges on grounds of substantive jurisdiction113

1

Section 67 of the Arbitration Act 199613 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

2

In subsection (1)—

a

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

b

for “(see section 73)” substitute “(see section XXIII of the Scheme)”;

c

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

3

After subsection (1) insert—

1A
In this section—
“Arbitration Agreement” means an agreement to refer a dispute to arbitration in accordance with, and satisfying the requirements of, the Scheme;
“the Scheme” means the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (England and Wales) Order 2003; and
“substantive jurisdiction” means any issue as to—
a
the validity of the Arbitration Agreement and the application of the Scheme to the dispute or difference in question;
b
the constitution of the arbitral tribunal; or
c
the matters which have been submitted to arbitration in accordance with the Arbitration Agreement.

Challenges for serious irregularity114

1

Section 68 of the Arbitration Act 199614 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

2

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

5

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

6

After subsection (8) insert—

9
In this section—
“EC law” means—
a
any enactment in the domestic legislation of England and Wales giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties, and
b
any such rights, powers, liabilities, obligations and restrictions which are not given effect by any such enactment; and
“the Scheme” means the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (England and Wales) Order 2003.

Time limits and other procedural restrictions on challenges to awards116

1

Section 70 of the Arbitration Act 199616 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

2

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

3

In subsection (2)—

a

omit paragraph (a);

b

in paragraph (b) for “section 57 (correction of award or additional award)” substitute “section XX of the Scheme (Correction of Awards)”.

4

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

5

Omit subsection (5).

6

After subsection (8) insert—

9
In this section, “the Scheme” means the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (England and Wales) Order 2003.

Common law challenges and saving117

Sections 81(1)(c) and 81(2) of the Arbitration Act 199617 shall apply to arbitrations conducted in accordance with the Scheme.

Challenge or appeal: effect of order of the court118

1

Section 7118 of the Arbitration Act 1996 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

2

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

3

After subsection (3) insert—

3A
In this section, “the Scheme” means the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (England and Wales) Order 2003.

4

Omit subsection (4).

XXIII.LOSS OF RIGHT TO OBJECT

119

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

that the arbitrator lacks substantive jurisdiction (as defined in paragraph 113 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.

XXIV.IMMUNITY

120

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.

121

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.

XXV.MISCELLANEOUS PROVISIONS

Requirements in connection with legal proceedings122

1

Sections 80(1), (2), (4), (5), (6) and (7) of the Arbitration Act 199619 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modification.

2

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

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

123

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

ACAS Arbitration Section

ACAS Head Office

Brandon House

180 Borough High Street

London SE1 1LW

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

or by electronic mail, at the address stipulated in the ACAS Guide to the Scheme.

124

Paragraph 123 (above) does not apply to the service of documents on the ACAS Arbitration Section for the purposes of legal proceedings.

Service of documents or notices on any other person or entity (other than ACAS or the ACAS Arbitration Section)

125

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.

126

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 address is a body corporate, to the body’s registered or principal office,

it shall be treated as effectively served.

127

Paragraphs 125 and 126 (above) do not apply to the service of documents for the purposes of legal proceedings, for which provision is made by rules of court.

Powers of court in relation to service of documents128

1

Section 77 of the Arbitration Act 199620 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

2

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

3

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

4

In subsection (3) for “Any party to the arbitration agreement may apply” substitute “ACAS or any party to the Arbitration Agreement”.

Reckoning periods of time129

1

Section 78(2), (3), (4) and (5) of the Arbitration Act 199621 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

2

In subsection (2)—

a

omit “If or to the extent there is no such agreement,”;

b

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

XXVI.TERRITORIAL OPERATION OF THE SCHEME

130

The Scheme applies to disputes involving an Employer who resides or carries on business in England and Wales.

APPENDIX AWaiver of Rights

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(This note is not part of the Order)

This Order sets out a 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 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 sections 80G(1) or 80H(1)(b) of the Employment Rights Act 1996 (flexible working). The Order extends to England and Wales only. The Order provides for the Scheme to come into effect on 6th April 2003. The Scheme will provide from that date a voluntary alternative to the employment tribunal for the resolution of claims arising out of an application for flexible working made under section 80F(1) of the 1996 Act by arbitration where both parties agree.

The Order also provides for certain provisions of the Arbitration Act 1996, as modified by the Order, to apply to arbitrations conducted in accordance with the Scheme.