Joint Committee on Statutory Instruments Second Report


APPENDIX 3

Memorandum from the Department of Trade and Industry

ACAS ARBITRATION SCHEME (ENGLAND AND WALES) ORDER 2001 (S.I. 2001/1185)

1. At its meeting on 1 May the Committee requested a memorandum about this instrument on the following points:

    "(1)  Paragraph 95 of the Scheme requires the arbitrator, in deciding whether the dismissal was fair or unfair, to have regard to (i) any provision of Part X of the Employment Rights Act 1996 requiring a dismissal for a particular reason to be regarded as unfair, or (ii) any other legislative provision requiring a reason to be regarded as unfair for the purpose of Part X of the Employment Rights Act 1996. The Committee assumes that the intention is that the arbitrator shall have regard to the legislation referred to in both sub-paragraphs. Should "or" be "and"?

    (2)  Paragraph 101 of the Scheme requires the arbitrator "in every case" (i) to 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) to ask the employee whether he or she wishes the arbitrator to make such an award. Explain why these requirements apply in cases in which the arbitrator dismisses the claim. If the intention is that the arbitrator should ascertain the employee's wishes during the hearing, should not the words "in the event that the arbitrator finds that the dismissal is unfair" have been inserted after "whether" in subparagraph ii and should not paragraph 101 have been included in Part XV?"

The first point

2. The Committee has asked whether "or" should be "and" in paragraph 95. It may be helpful to note that an arbitrator is required in his award to identify the reason or principal reason for the dismissal. Paragraph 95 requires the arbitrator in deciding whether the dismissal was fair or unfair to have regard to statutory provision as therein set out. There will only ever be one provision that is relevant in any particular case, as there is only one reason or principal reason for the dismissal, and the Department therefore considers that the use of "or" achieves the intended aim of paragraph 95. However, on balance the Department agrees that "and" would be preferable. The Department will therefore draw this point to the attention of ACAS and suggest that paragraph 95 be amended in these terms when the Scheme is revised.

The second point

3. The requirements set out in paragraph 101 apply in every case for the following reasons. It is envisaged that the hearing will be short and that the arbitrator's deliberations will take place after the hearing. The arbitrator's decision will always be in the form of a written award and given after the hearing. Consequently, the arbitrator needs to ascertain at the hearing whether the employees wishes the arbitrator to order reinstatement or re-engagement, as he will be making his decision not at the hearing but afterwards. It was therefore necessary to impose the requirements even where the arbitrator will subsequently dismiss the case.

4. As regards whether the words "in the event that the arbitrator finds that the dismissal is unfair" should have been inserted after "whether" in subparagraph ii, the Department considers that it is implicit in paragraph 101 subparagraph ii that the arbitrator's power to order reinstatement or re-engagement is confined to situations where the arbitrator finds that the dismissal is unfair. The arbitrator's terms of reference in paragraph 12 confirm this by the sentence, "If the arbitrator finds the dismissal unfair, he or she shall determine the appropriate remedy under the terms of this Scheme.".

5. The Department considers that, as paragraph 101 is concerned both with the procedure at the hearing and with awards, it is relevant to both section XV and section XVIII and that therefore the paragraph sits equally well in either section.

4 May 2001


 
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