The ACAS Arbitration Scheme (England and Wales) Order 2001

Other categories

(xii)Where the reason or principal reason for the dismissal of the Employee qualifies under any other applicable legislative provision for a minimum basic award.

127.  Before any reductions are taken into account under paragraphs 130-134 below (“Reductions to the basic amount”), the “minimum basic amount” shall not be less than:

(i)in cases within paragraph 126 (i), (ii), (iii), (iv), (v) and (vi) above, the amount provided for in section 120(1) of the Employment Rights Act 1996, as amended from time to time;

(ii)in cases within paragraph 126 (vii) above, the amount provided for in section 156 of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended from time to time;

(iii)in cases within paragraph 126 (xii) above, the amount provided for in the relevant legislation.

Basic amount of two weeks' pay in certain cases

128.  Where:

(i)the arbitrator finds that the reason (or, where there is more than one, the principal reason) for the dismissal of the Employee is that he or she was redundant and

(ii)the Employee:

(a)by virtue of section 138 of the Employment Rights Act 1996, as amended from time to time, is not regarded as dismissed for the purposes of Part XI of that Act, or

(b)by virtue of section 141 of that Act, as amended from time to time, is not, or (if he or she were otherwise entitled) would not be, entitled to a redundancy payment,

the basic amount shall be two weeks' pay (for the definition of “week’s pay”, see paragraph 122 above).

129.  For the purposes of this Scheme:

(i)for the definition of “redundancy”, the arbitrator shall have regard to section 139 of the Employment Rights Act 1996, as amended from time to time;

(ii)for the definition of “redundancy payment”, the arbitrator shall have regard to Part XI of the Employment Rights Act 1996, as amended from time to time.

Reductions to the basic amount

130.  Where the arbitrator finds that the Employee has unreasonably refused an offer by the Employer which (if accepted) would have the effect of reinstating the Employee in his or her employment in all respects as if he or she had not been dismissed, the arbitrator shall reduce or further reduce the basic amount to such extent as he or she considers just and equitable having regard to that finding.

131.  Where the arbitrator considers that any conduct of the Employee before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the basic amount to any extent, the arbitrator shall reduce or further reduce that amount accordingly. In assessing such conduct, the arbitrator shall disregard (if relevant) those matters set out in section 155 of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended from time to time.

132.  The preceding paragraph does not apply in a redundancy case (see paragraph 129 (i) above) unless the reason for selecting the Employee for dismissal was one of those specified in paragraph 126 above (“Minimum basic amounts in certain cases”), and in such a case, the preceding paragraph applies only to so much of the basic amount as is payable because of paragraph 126 above.

133.  Where the Employee has been awarded any amount in respect of the dismissal under a dismissal procedures agreement designated under section 110 of the Employment Rights Act 1996 (as amended from time to time), the arbitrator shall reduce or further reduce the amount of the basic award to such extent as he or she considers just and equitable having regard to that award.

134.  The basic amount shall be reduced or further reduced by the amount of any payment made by the Employer to the Employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI of the Employment Rights Act 1996, as amended from time to time, or otherwise).

The compensatory amount

135.  (Subject to the following provisions) the compensatory amount shall be such as the arbitrator considers just and equitable in all the circumstances having regard to the loss sustained by the Employee in consequence of the dismissal —in so far as that loss is attributable to action taken by the Employer.

136.  The loss referred to in paragraph 135 above shall be taken to include:

(i)any expenses reasonably incurred by the Employee in consequence of the dismissal, and

(ii)(subject to (iii) below) loss of any benefit which he or she might reasonably be expected to have had but for the dismissal.

(iii)in respect of any loss of:

• any entitlement or potential entitlement to a payment on account of dismissal by reason of redundancy (whether in pursuance of Part XI of the Employment Rights Act 1996, as amended from time to time, or otherwise) or

• any expectation of such a payment

only the loss referable to the amount (if any) by which such a payment would have exceeded the basic amount in respect of the same dismissal (as calculated under the provisions set out above—but excluding any reductions under paragraphs 130-134 above (“Reductions to the basic amount”)).

137.  In ascertaining the loss referred to in paragraph 135 above, the arbitrator shall apply the principle that a person has a duty to mitigate his or her loss.

138.  In determining, for the purposes of paragraph 135 above, how far any loss sustained by the Employee was attributable to action taken by the Employer, no account shall be taken of any pressure which by:

(i)calling, organising, procuring or financing a strike or other industrial action, or

(ii)threatening to do so,

was exercised on the Employer to dismiss the Employee; and that question shall be determined as if no such pressure had been exercised.

Reductions to the compensatory amount

139.  Where the arbitrator finds that the dismissal was to any extent caused or contributed to by any conduct of the Employee, he or she shall reduce the compensatory amount by such proportion as he or she considers just and equitable having regard to that finding. In assessing such conduct, the arbitrator shall disregard (if relevant) those matters set out in section 155 of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended from time to time.

140.  If :

(i)any payment was made by the Employer to the Employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI of the Employment Rights Act 1996, as amended from time to time, or otherwise); and

(ii)the amount of such a payment exceeds the basic amount that would have been payable (under the provisions set out above—excluding for this purpose reductions on account of redundancy payments (see paragraph 129 above)),

that excess goes to reduce the compensatory amount.

Internal appeal procedures

141.  Where an award of compensation is to be made, and the arbitrator finds that:

(i)the Employer provided a procedure for appealing against dismissal, and

(ii)the Employee was, at the time of the dismissal or within a reasonable period afterwards, given written notice stating that the Employer provided the procedure and including details of it, but

(iii)the Employee did not appeal against the dismissal under the procedure (otherwise than because the Employer prevented him or her from doing so),

the arbitrator shall reduce the compensatory amount included in an award of compensation by such amount (if any) as he or she considers just and equitable.

142.  Where an award of compensation is to be made, and the arbitrator finds that:

(i)the Employer provided a procedure for appealing against dismissal, but

(ii)the Employer prevented the Employee from appealing against the dismissal under the procedure,

the award of compensation shall include a supplementary amount, being such amount (if any) as the arbitrator considers just and equitable.

143.  In determining the amount of a reduction under paragraph 141 above or a supplementary amount under paragraph 142 above, the arbitrator shall have regard to all the circumstances of the case, including in particular the chances that an appeal under the procedure provided by the Employer would have been successful.

144.  The amount of such a reduction or supplementary amount shall not exceed the amount of two weeks' pay (for the definition of “week’s pay”, see paragraph 122 above).

Limits on the compensatory amount

145.  With the exception of:

(i)cases falling within sections 100 or 105(3), of the Employment Rights Act 1996, as amended from time to time (Health and Safety Cases), and

(ii)cases where the reason (or, if more than one, the principal reason):

(a)in a redundancy case, for selecting the Employee for dismissal, or

(b)otherwise for the dismissal,

was that the Employee made a protected disclosure (within the meaning of Part IVA of the Employment Rights Act 1996, as amended from time to time); and

(iii)cases falling within any other exception to the statutory limit,

no compensatory amount awarded by an arbitrator shall exceed the statutory limit provided for in section 124(1) of the Employment Rights Act 1996, as amended from time to time.

146.  The limit referred to above applies to the amount which the arbitrator would award (apart from paragraph 145 above) in respect of the subject matter of the complaint, after taking into account:

(i)any payment made by the Employer to the Employee in respect of that matter, and

(ii)any reduction in the amount of the award required by any enactment or rule of law.

Double recovery

147.  Where the same acts of the Employer are relied upon by the Employee:

(i)to ground a claim for unfair dismissal in arbitration as well as

(ii)to ground a claim in the employment tribunal for discrimination (under the Sex Discrimination Act 1975 and/or the Race Relations Act 1976 and/or the Disability Discrimination Act 1995, or any other relevant statute),

the arbitrator shall not award compensation in respect of any loss or other matter which is to be or has been taken into account by the employment tribunal in awarding compensation with respect to the discrimination claim.

• In this regard, the arbitrator shall have regard to any information supplied by the parties under paragraph 71 above.