The Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993

Citation, commencement and revocation

1.—(1) These Regulations may be cited as the Industrial Tribunals (Constitution and Procedure) (Scotland) Regulations 1993 and the Rules of Procedure contained in Schedules 1, 2, 3, 4 and 5 to these Regulations may be referred to, respectively, as—

(a) the Industrial Tribunals Rules of Procedure (Scotland) 1993;

(b) the Industrial Tribunals Complementary Rules of Procedure (Scotland) 1993;

(c) the Industrial Tribunals (Levy Appeals) Rules of Procedure (Scotland) 1993;

(d) the Industrial Tribunals (Improvement and Prohibition Notices Appeals) Rules of Procedure (Scotland) 1993; and

(e) The Industrial Tribunals (Non-Discrimination Notices Appeals) Rules of Procedure (Scotland) 1993.

(2) These Regulations shall come into force on 16 December 1993.

(3) The following Regulations are hereby revoked—

• The Industrial Tribunals (Scotland) Regulations 1965(1)

• The Industrial Tribunals (Scotland)(Amendment) Regulations 1967(2)

• The Industrial Tribunals (Scotland) (Amendment) Regulations 1972(3)

• The Industrial Tribunals (Improvement and Prohibition Notices Appeals) (Scotland) Regulations 1974(4)

• The Industrial Tribunals (Scotland)(Amendment) Regulations 1977(5)

• The Industrial Tribunals (Non-Discrimination Notices Appeals) (Scotland) Regulations 1977(6)

• The Industrial Tribunals (Rules of Procedure)(Scotland) Regulations 1985(7)

Interpretation

2.—(1) In these Regulations and in Schedules 1, 2, 3, 4 and 5, unless the context otherwise requires—

“the 1978 Act” means the Employment Protection (Consolidation) Act 1978;

“the 1992 Act” means the Trade Union and Labour Relations (Consolidation) Act 1992(8)

“Assistant Secretary” means the person for the time being acting as the secretary of a Regional Office of the Industrial Tribunals;

“chairman” means the President or a member of the panel of chairmen selected in accordance with regulation 7(1), or the President where a Minister of the Crown so directs in accordance with section 128(6) of the 1978 Act(9);

“the clerk” means the person appointed as clerk to the tribunal by the Secretary of the Tribunals or an Assistant Secretary to act in that capacity at one or more hearings;

“hearing” means a sitting of a tribunal duly constituted for the purpose of receiving evidence, hearing addresses and witnesses or doing anything lawfully requisite to enable the tribunal to reach a decision on any question;

“the Lord President” means the Lord President of the Court of Session.

“the Office of the Tribunals” means the Central Office of the Industrial Tribunals (Scotland);

“panel of chairmen” means the panel appointed under regulation 5(1)(a);

“the President” means the President of the Industrial Tribunals (Scotland) or the person nominated by the Lord President to discharge for the time being the functions of the President;

“Regional Chairman” means a member of the panel of chairmen who has been appointed to the position of Regional Chairman in accordance with regulation 6 (1) or who has been nominated to discharge the functions of a Regional Chairman in accordance with regulation 6(2);

“Regional Office of the Industrial Tribunals” means a regional office which has been established under the Office of the Tribunals for an area specified by the President;

“Register” means the Register of Applications, appeals and decisions kept in pursuance of regulation 9;

“the Secretary” means the person for the time being appointed to act as the Secretary of the Office of the Tribunals;

“tribunal” means an industrial tribunal (Scotland) established in pursuance of regulation 4 and in relation to any proceedings means the tribunal to which the proceedings have been referred by the President or a Regional Chairman.

(2) In these Regulations, in so far as they relate to the rules in Schedules 1 and 2, and in those Schedules, unless the context otherwise requires—

“the 1970 Act” means the Equal Pay Act 1970(10);

“the 1975 Act” means the Sex Discrimination Act 1975(11);

“the 1976 Act” means the Race Relations Act 1976(12);

“the 1986 Act” means the Sex Discrimination Act 1986(13);

“decision” in relation to a tribunal includes

• a declaration,

• an order, including an order striking out any originating application or notice of appearance made under rule 4(7) or 13(2),

• a recommendation or an award of the tribunal, and

• a determination under rule 6,

but does not include any other interlocutory order or any other decision on an interlocutory matter;

“equal value claim” means a claim by an applicant which rests upon entitlement to the benefit of an equality clause by virtue of the operation of section 1(2)(c) of the Equal Pay Act;

“expert” means a member of the panel of independent experts within the meaning of section 2A(4) of the Equal Pay Act;

“report” means a report required by a tribunal to be prepared by an expert, pursuant to section 2A(1)(b) of the Equal Pay Act;

“respondent” means a party to the proceedings before a tribunal other than the applicant.

(3) In these Regulations, in so far as they relate to the rules in Schedule 3, and in that Schedule, unless the context otherwise requires—

“the 1982 Act” means the Industrial Training Act 1982(14);

“the Board” means in relation to an appeal the respondent industrial training board;

“levy” means a levy imposed under section 11 of the 1982 Act.

(4) In these Regulations, in so far as they relate to the rules in Schedule 4, and in that Schedule, unless the context otherwise requires—

“the 1974 Act” means the Health and Safety at Work etc. Act 1974;

“decision” in relation to a tribunal includes a direction under rule 4 and any order which is not an interlocutory order;

“improvement notice” means a notice under section 21 of the 1974 Act;

“inspector” means a person appointed under section 19(1) of the 1974 Act;

“prohibition notice” means a notice under section 22 of the 1974 Act;

“respondent” means the inspector who issued the improvement notice or prohibition notice which is the subject of the appeal.

(5) In these Regulations, in so far as they relate to the rules in Schedule 5, and in that Schedule, unless the context otherwise requires—

“the 1975 Act” means the Sex Discrimination Act 1975;

“the 1976 Act” means the Race Relations Act 1976;

“decision” in relation to a tribunal includes the direction under section 68(3) of the 1975 Act or, as the case may be, under section 59(3) of the 1976 Act and any other order which is not an interlocutory order.

“non-discrimination notice” means a notice under section 67 of the 1975 Act or, as the case may be, under section 58 of the 1976 Act;

“respondent” means the Equal Opportunities Commission established under section 53 of the 1975 Act or, as the case may be, the Commission for Racial Equality established under section 43 of the 1976 Act.

President of Industrial Tribunals

3.—(1) There shall be a President of the Industrial Tribunals (Scotland) who shall be appointed by the Lord President and shall be an advocate or solicitor of not less than 7 years standing.

(2) The President may resign his office by notice in writing to the Lord President.

(3) The President shall vacate his office at the end of the completed year of service in the course of which he attains the age of 72 years.

(4) If the Lord President is satisfied that the President is incapacitated by infirmity of mind or body from discharging the duties of his office, or the President is adjudged to be bankrupt or makes a composition or arrangement with his creditors, the Lord President may revoke his appointment.

(5) The functions of President under these Regulations may, if he is for any reason unable to act or during any vacancy in his office, be discharged by a person nominated for that purpose by the Lord President.

Establishment of industrial tribunals

4.—(1) The President shall from time to time determine the number of tribunals to be established in Scotland for the purposes of determining proceedings.

(2) The President or, in relation to the area specified in relation to him, a Regional Chairman shall determine at what times and in what places in Scotland tribunals shall sit.

Panels of members of tribunals

5.—(1) There shall be three panels of members of the Industrial Tribunals (Scotland), namely—

(a) a panel of persons, being advocates or solicitors of not less than seven years standing, appointed by the Lord President;

(b) a panel of persons appointed by the Secretary of State after consultation with such organisations or associations of organisations representative of employees as he sees fit; and

(c) a panel of persons appointed by the Secretary of State after consultation with such organisations or associations of organisations representative of employers as he sees fit.

(2) Members of the panels constituted under these regulations shall hold and vacate office under the terms of the instrument under which they are appointed but may resign their office by notice in writing, in the case of a member of the panel of chairmen, to the Lord President and, in any other case, to the Secretary of State; and any such member who ceases to hold office shall be eligible for reappointment.

Regional Chairmen

6.—(1) The President may from time to time appoint Regional Chairmen from the panel of chairmen and each Regional Chairman shall be responsible for the administration of justice by tribunals in the area specified by the President in relation to him.

(2) The President or the Regional Chairman for an area may from time to time nominate a member of the panel of chairmen to discharge for the time being the functions of the Regional Chairman for that area.

Composition of tribunals

7.—(1) For each hearing of any matter before a tribunal the President or the Regional Chairman shall, subject to paragraph 5, select a chairman, who shall be the President or a member of the panel of chairmen, and the President or the Regional Chairman may select himself.

(2) In any proceedings which are to be determined by a tribunal comprising a chairman (selected in accordance with paragraph (1) above) and two other members, those other members shall be selected by the President or by the Regional Chairman, as to one member from the panel of persons appointed by the Secretary of State under regulation 5(1)(b) and as to the other from the panel of persons appointed under regulation 5(1)(c).

(3) In any proceedings which are to be determined by a tribunal whose composition is described in paragraph (2), those proceedings may, with the consent of the parties, be heard and determined in the absence of any one member other than the chairman, and in that event the tribunal shall be properly constituted.

(4) The President or the Regional Chairman may at any time select from the appropriate panel another person in substitution for the chairman or other member of the tribunal previously selected to hear any proceedings before a tribunal.

(5) Paragraph (1) does not apply where a Minister of the Crown has issued a direction in accordance with section 128(6) of the 1978 Act (direction on grounds of national security that proceedings be heard and determined by the President).

Proceedings of tribunals

8.—(1) Subject to paragraphs (2), (3) and (4), the rules in Schedule 1 shall apply in relation to all proceedings before a tribunal except where separate rules of procedure made under the provisions of any enactment are applicable.

(2) In proceedings to which the rules in Schedule 1 apply and which involve an equal value claim, the rules in Schedule 2 (including rule 8A) shall apply in place of rules 4, 9, 10, 12, 13 and 20 in Schedule 1.

(3) The rules contained in Schedules 1 and 2 shall apply in proceedings to which they relate where—

(a) the respondent or one of the respondents resides or carries on business in Scotland; or

(b) the proceedings relate to a contract of employment the place of execution or performance of which is in Scotland; or

(c) the proceedings are to determine a question which has been referred to the tribunal by a sheriff in Scotland.

(4) The rules in Schedules 3, 4 and 5 shall apply in relation to proceedings before a tribunal which relate to matters arising in Scotland and consist, respectively, in—

(a) an appeal by a person assessed to levy imposed under a levy order made under section 12 of the 1982 Act(15);

(b) an appeal against an improvement or prohibition notice under section 23 of the 1974 Act; and

(c) an appeal against a non-discrimination notice under section 68 of the 1975 Act or section 59 of the 1976 Act.

Register

9.  The Secretary shall maintain a Register of applications, appeals and decisions which shall be open to the inspection of any person without charge at all reasonable hours.

Proof of decisions of tribunals

10.  The production in any proceedings in any court of a document purporting to be certified by the Secretary to be a true copy of an entry of a decision in the Register shall, unless the contrary is proved, be sufficient evidence of the document and of the facts stated therein.

Transitional provisions relating to rules of procedure

11.—(1) The rules in Schedules 1, 2, 3, 4 and 5 (in this regulation referred to as “the new rules”) shall apply in all proceedings to which they relate, irrespective of when those proceedings were commenced, as from 16 December 1993, and the rules of procedure in—

(a) Schedule 2 to the Industrial Tribunals (Scotland) Regulations 1965;

(b) the Schedule to the Industrial Tribunals (Improvement and Prohibition Notices Appeal) (Scotland) Regulations 1974;

(c) the Schedule to the Industrial Tribunals (Non-Discrimination Notices Appeals) (Scotland) Regulations 1977;

(d) the Industrial Tribunals Rules of Procedure (Scotland) 1985 (“the 1985 rules”); and

(e) the Industrial Tribunals Complementary Rules of Procedure (Scotland) 1985, (in this regulation together referred to as “the old rules”) shall cease to have effect in relation to proceedings on that date.

(2) Anything done validly under or pursuant to the old rules before 16 December 1993 shall be treated as having been done validly for the purposes of these Regulations and the new rules, whether or not what was done could have been done under or pursuant to these Regulations and the new rules.

(3) Notwithstanding paragraph (1), in any proceedings in which a pre-hearing assessment (under Rule 6 of the 1985 rules) has taken place or commenced before 16 December 1993, Rule 6 of those rules shall continue to have effect in relation to those proceedings and no pre-hearing review (under rule 7 in Schedule 1) may take place;

(4) Where the first fixing of a date of a pre-hearing assessment occurs before 16 December 1993 but paragraph (3) does not apply, the hearing shall be refixed as a pre-hearing review (under rule 7 in Schedule 1).

Transitional provisions relating to composition of tribunals

12.—(1) Except as mentioned in paragraph (2), a tribunal hearing an originating application on or after 16 December 1993 shall be composed of a chairman and two other members (or, with the consent of the parties, a chairman and one other member) where the first fixing of a date for the hearing of the originating application occurred before 30 November 1993.

(2) A tribunal hearing such an originating application on or after 16 December 1993 may be composed of a chairman alone for either of the following purposes—

(a) making an order dismissing the proceedings where the appellant or applicant has given written notice of the abandonment of the proceedings; and

(b) deciding an application in accordance with the written agreement of the parties.

Signed by order of the Secretary of State

Ann Widdecombe

Parliamentary Under-Secretary of State,

Department of Employment

17th November 1993