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ACAS's arbitration scheme is little better, says Alison Mckane. ...
ACAS's arbitration scheme is little better, says Alison Mckane.
Councils are no strangers to employment tribunals. Anyone in a council's legal department will be all too familiar with the workload they generate.
Which is why everyone has been getting excited about the prospect of settling employment disputes in record time using the new ACAS arbitration scheme. But a closer look shows we should not expect to be going home early just yet.
The scheme, launched this week, provides a voluntary alternative to the employment tribunal for unfair dismissal cases. Although the industrial tribunal system was meant to provide a quick and informal setting for resolving employment disputes, tribunals often resemble formal courtrooms complete with barristers and complex legal arguments.
In contrast, the ACAS scheme is described as 'voluntary, speedy, informal, confidential and free from legal argument'. But employers and staff are unlikely to be queuing up for arbitration by ACAS. What sounds attractive in principle very quickly disappoints.
The arbitration scheme only applies to unfair dismissal claims where there are no jurisdictional disputes and dismissal is accepted.
If a member of staff has an allied claim, such as discrimination or unlawful
deduction of wages, these claims will still have to be determined by an employment tribunal unless the worker can be persuaded to settle them in return for a referral to arbitration.
The requirement that dismissal must be accepted rules out arbitration in claims of constructive dismissal. If an employer disputes the fact that the member of staff has the requisite period of service or is even an employee, then these too are outside the scope of the ACAS scheme.
If the parties do decide to agree to go to ACAS arbitration they have to sign an agreement waiving the employee's right to claim unfair dismissal in an employment tribunal.
The arbitration takes place in private, and arbitration is by a single arbitrator, who will have knowledge and experience of employment practices and procedures. The arbitrator will take account of ACAS codes of practice and procedures rather than applying legal tests or rules in deciding on fairness.
The arbitrator can award reinstatement, re-engagement or compensation in line with the limits laid down for employment tribunal awards. A decision of an arbitrator is final and there is no appeal on a point of law. A decision can only be challenged in the event of 'serious irregularity'.
The scheme appears to provide a quicker and more cost-effective process for just the type of cases that already run like clockwork in the employment tribunal - the type that get listed quickly and proceed with minimal legal argument.
It seems we employment lawyers will live to fight another case after all.
-Alison McKane, head of employment law, Lambeth LBC.
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