Note that this scheme is not available where there are disputes as to jurisdiction (such as whether there is a dismissal, whether the individual is an employee, whether the employee has one year's service, etc.) and is not appropriate where there are complex legal issues or questions of European law (such as the application of TUPE, sex discrimination issues or working time regulations).
Once the parties agree to refer an unfair dismissal dispute to arbitration under the scheme, they will effectively give up their rights to go to an employment tribunal and must proceed with the arbitration until the arbitrator makes his decision, unless the employee withdraws his claim or the dispute is settled. The arbitrator's decision is final and binding and cannot be appealed except on very limited grounds. Because of this, the employee's agreement to go to arbitration must be an ACAS conciliated agreement or a statutory compromise agreement on which the employee takes independent advice. It is not possible to agree in advance, say in an employment contract, to automatically refer disputes to the scheme - it must be a voluntary agreement once a dispute has arisen.
The arbitration hearing and decision are confidential and the arbitrator will take an informal, inquisitorial approach. The arbitrator will not apply strict legal tests or rules established by caselaw but will take into account general principles of fairness and good conduct (including the ACAS Disciplinary and Grievance Procedures Code of Practice and Discipline at Work Handbook). This may make the outcome less easy to predict than even tribunal hearings!
Uncertainty how the system will work in practice, together with its limited scope, may result in a poor take-up of this new initiative, despite the attractions of speedier resolution and likely lower costs than tribunal proceedings. However, it is worth bearing in mind for more straightforward cases where a quick result and a reduced potential for adverse publicity is more important than the outcome itself.
© Herbert Smith 2002The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.
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