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Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004

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Citation and commencement

1.—(1) These Regulations may be cited as the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 and the Rules of Procedure contained in Schedules 1, 2, 3, 4, 5 and 6 may be referred to, respectively, as –

(a)the Industrial Tribunals Rules of Procedure 2004;

(b)the Industrial Tribunals (National Security) Complementary Rules of Procedure 2004;

(c)the Industrial Tribunals (Equal Value) Complementary Rules of Procedure 2004;

(d)the Industrial Tribunals (Levy Appeals) Rules of Procedure 2004;

(e)the Industrial Tribunals (Improvement and Prohibition Notices Appeals) Rules of Procedure 2004; and

(f)the Industrial Tribunals (Non-Discrimination Notices Appeals) Rules of Procedure 2004.

(2) These Regulations shall come into operation on 4th April 2004.

Interpretation

2.—(1) In these Regulations –

“the Act of 1995” means the Disability Discrimination Act 1995(1);

“the Order of 1976” means the Sex Discrimination (Northern Ireland) Order 1976(2);

“the Employment Rights Order” means the Employment Rights (Northern Ireland) Order 1996(3);

“the Industrial Tribunals Order” means the Industrial Tribunals (Northern Ireland) Order 1996(4);

“the Order of 1997” means the Race Relations (Northern Ireland) Order 1997(5);

“the Regulations of 2003” means the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003(6);

“chairman” means the President, the Vice-President or a member of the panel of chairmen selected in accordance with regulation 8(1); or, for the purposes of proceedings in relation to which a direction is given under Article 12(3) of the Industrial Tribunals Order or an order is made under Article 12(4) of that Order, a member of the panel referred to in regulation 6(a) selected in accordance with regulation 8(5)(a);

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

“devolution issue” means a devolution issue within the meaning of paragraph 1 of Schedule 10 to the Northern Ireland Act 1998(7);

“document exchange” means any document exchange for the time being approved by the Lord Chancellor;

“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 Office of the Tribunals” means the Office of the Industrial Tribunals and the Fair Employment Tribunal;

“panel of chairmen” means the panel appointed in accordance with regulation 5(1)(a);

“the President” means the President of the Industrial Tribunals and the Fair Employment Tribunal or the person nominated by the Lord Chancellor under Article 82(6) of the Fair Employment and Treatment (Northern Ireland) Order 1998(8) to discharge the functions of the President;

Register” means the Register of applications, appeals and decisions kept in pursuance of regulation 11;

“the relevant authorities” means the persons mentioned in paragraph 5 of Schedule 10 to the Northern Ireland Act 1998;

“rule” means a rule of procedure contained in the Schedules;

“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;

“the Vice-President” means the Vice-President of the Industrial Tribunals and the Fair Employment Tribunal or the person nominated by the Lord Chancellor under Article 82(6) of the Fair Employment and Treatment (Northern Ireland) Order 1998 to discharge the functions of the Vice-President.

(2) In these Regulations, in so far as they relate to the rules in Schedules 1, 2 and 3, and in those Schedules –

“the Act of 1970” means the Equal Pay Act (Northern Ireland) 1970(9);

“the Order of 1988” means the Sex Discrimination (Northern Ireland) Order 1988(10);

“the Order of 1992” means the Industrial Relations (Northern Ireland) Order 1992(11);

“Crown employment proceedings” has the meaning given by Article 12(8) of the Industrial Tribunals Order;

“decision” in relation to a tribunal includes –

(a)

a declaration;

(b)

an order, including an order striking out any originating application or notice of appearance made under rule 4(8)(b) or 15(2);

(c)

a recommendation or an award of the tribunal; and

(d)

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 Act of 1970(12);

“excluded person” means, in relation to any proceedings, a person who has been excluded from all or part of the proceedings by virtue of –

(a)

a direction of a Minister of the Crown under rule 8(1)(b) or (c), or

(b)

an order of the tribunal under rule 8(2)(a) read with rule 8(1)(b) or (c);

“expert” means a member of the panel of independent experts within the meaning of section 2A(4) of the Act of 1970(13);

“misconceived” includes having no reasonable prospect of success;

“report” means a report required by a tribunal to be prepared by an expert, pursuant to section 2A(1)(b) of the Act of 1970;

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

“special advocate” means a person appointed pursuant to rule 7A(1).

(3) In these Regulations, in so far as they relate to the rules in Schedule 4, and in that Schedule –

“the Order of 1984” means the Industrial Training (Northern Ireland) Order 1984(14);

“appellant” means a person who sends a notice of appeal to the Board;

“the Board” means, in relation to an appeal, the Construction Industry Training Board(15);

“decision” includes any order which is not an interlocutory order;

“levy” means a levy imposed under the Order of 1984(16).

(4) In these Regulations, in so far as they relate to the rules in Schedule 5, and in that Schedule –

“the Order of 1978” means the Health and Safety at Work (Northern Ireland) Order 1978(17);

“decision” in relation to a tribunal includes a direction under rule 4(1) and any order which is not an interlocutory order;

“improvement notice” means a notice under Article 23 of the Order of 1978;

“inspector” means a person appointed under Article 21(1) of the Order of 1978;

“prohibition notice” means a notice under Article 24 of the Order of 1978;

“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 6, and in that Schedule –

“the Order of 2000” means the Equality (Disability, etc.) (Northern Ireland) Order 2000(18);

“decision” in relation to a tribunal includes a direction under Article 68(3) of the Order of 1976, under Article 56(3) of the Order of 1997 or under paragraph 10(4) of Schedule 1 to the Order of 2000, as the case may be, and any other order which is not an interlocutory order;

“non-discrimination notice” means a notice under Article 67 of the Order of 1976, Article 56 of the Order of 1997 or paragraph 10 of Schedule 1 to the Order of 2000;

“respondent” means the Equality Commission established under section 73 of the Northern Ireland Act 1998(19).

(6) Any period of time for doing any act required or permitted to be done under any of the rules in Schedules 1, 2, 3, 4, 5 and 6 or under any decision, direction, declaration, order, recommendation, award or determination of a tribunal or a chairman, shall be calculated in accordance with paragraphs (7) to (10).

(7) Where any act must or may be done within a certain number of days of or from an event, the date of that event shall not be included in the calculation. For example, a respondent receives a copy of an originating application on 1st October. He must present a written notice of appearance to the Secretary within 21 days of receiving the copy. The last day for presentation of the notice is 22nd October.

(8) Where any act must or may be done not less than a certain number of days before or after an event, the date of that event shall not be included in the calculation. For example, if a party wishes to submit representations in writing for consideration by a tribunal at the hearing of the originating application, he must submit them not less than 7 days before the hearing. If the hearing is fixed for 8th October, the representations must be submitted no later than 1st October.

(9) Where the tribunal or a chairman gives any decision, direction, declaration, order, recommendation, award or determination which imposes a time limit for doing any act, the last date for compliance shall, wherever practicable, be expressed as a calendar date.

(10) In rule 5(2) of Schedule 1, rule 8 of Schedule 4, rule 6(1) of Schedule 5 and rule 4(1) of Schedule 6, the requirement to send the notice of hearing to the parties not less than 14 days before the date fixed for the hearing shall not be construed as a requirement for service of the notice to have been effected not less than 14 days before the hearing date, but as a requirement for the notice to have been placed in the post not less than 14 days before that date. For example, a hearing is fixed for 15th October. The last day on which the notice may be placed in the post is 1st October.

Establishment of industrial tribunals

3.—(1) There shall continue to be tribunals established for the purposes of exercising the jurisdiction conferred on them by or under the Order of 1984 or any other statutory provision.

(2) The President or the Vice-President shall determine at what time and in what place the tribunals shall sit.

President and Vice-President of industrial tribunals

4.—(1) There shall be a President and a Vice-President of the Industrial Tribunals and the Fair Employment Tribunal who shall each be appointed by the Lord Chancellor and shall be persons –

(a)having a 7 year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990(20);

(b)being an advocate or solicitor admitted in Scotland of at least 7 years' standing; or

(c)being a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least 7 years' standing.

(2) The President or the Vice-President may each resign his office by notice in writing to the Lord Chancellor.

(3) The President and the Vice-President shall each 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 Chancellor is satisfied that the President or the Vice-President is incapacitated by infirmity of mind or body from discharging the duties of his office, or the President or the Vice-President is adjudged to be bankrupt or makes a composition or arrangement with his creditors, the Lord Chancellor may revoke his appointment.

(5) The functions of President and Vice-President under these Regulations may, if either 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 Chancellor.

Panels of chairmen and members of industrial tribunals

5.—(1) There shall be a panel of chairmen and two panels of members of the industrial tribunals, namely –

(a)a panel of persons to act as chairmen appointed by the Department consisting of persons –

(i)having a 7 year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;

(ii)being an advocate or solicitor admitted in Scotland of at least 7 years' standing; or

(iii)being a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least 7 years' standing;

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

(c)a panel of persons appointed by the Department after consultation with such organisations or associations of organisations representative of employers as it 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 to the Department, and any such member who ceases to hold office shall be eligible for reappointment.

Further panels in national security cases

6.  For the purposes of proceedings in relation to which a direction is given under Article 12(3) of the Industrial Tribunals Order, or an order is made under Article 12(4) of that Order, the President shall –

(a)select a panel of persons from the panel of chairmen to act as chairmen in such cases, and

(b)select –

(i)a panel of persons from the panel referred to in regulation 5(1)(b) as persons suitable to act as members in such cases; and

(ii)a panel of persons from the panel referred to in regulation 5(1)(c) as persons suitable to act as members in such cases.

Modification of Article 6 of the Industrial Tribunals Order

7.—(1) For the purposes of proceedings in relation to which a direction is given under Article 12(3), or an order is made under Article 12(4) of the Industrial Tribunals Order, Article 6 of that Order shall be modified as provided by paragraphs (2) to (4).

(2) In Article 6(1)(a), for the words “in accordance with regulations made under Article 3(1)” substitute the words “in accordance with regulations 6(a) and 8(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004”.

(3) In Article 6(1)(b), for the words “in accordance with regulations so made” substitute the words “in accordance with regulations 6(b) and 8(5) of those Regulations”.

(4) In Article 6(5), for the words “in accordance with regulations made under Article 3(1)” substitute the words “in accordance with regulation 6(a) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004”.

Composition of tribunals

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

(2) In any proceedings which are to be determined by a tribunal comprising a chairman (selected in accordance with paragraph (1) or (5), as the case may be) and two other members, those other members shall, subject to paragraph (5), be selected by the President or by the Vice-President, as to one member from the panel of persons appointed by the Department 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), or, as the case may be, paragraph (5)(b), 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 Vice-President 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) For the purposes of proceedings in relation to which a direction is given under Article 12(3) of the Industrial Tribunals Order, or an order is made under Article 12(4) of that Order –

(a)the President or the Vice-President shall select a chairman, who shall be the President, the Vice-President or a member of the panel selected in accordance with regulation 6(a), and the President or the Vice-President may select himself; and

(b)in any such proceedings which are to be determined by a tribunal comprising a chairman (selected in accordance with sub-paragraph (a)) and two other members, those other members shall be selected by the President or the Vice-President, as to –

(i)one member from the panel selected in accordance with regulation 6(b)(i); and

(ii)the other from the panel selected in accordance with regulation 6(b)(ii).

Overriding objective

9.—(1) The overriding objective of the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable –

(a)ensuring that the parties are on an equal footing;

(b)saving expense;

(c)dealing with the case in ways which are proportionate to the complexity of the issues; and

(d)ensuring that it is dealt with expeditiously and fairly.

(3) A tribunal shall seek to give effect to the overriding objective when it –

(a)exercises any power given to it by the rules in Schedules 1, 2, 3, 4, 5 and 6; or

(b)interprets any rule in Schedules 1, 2, 3, 4, 5 and 6.

(4) The parties shall assist the tribunal to further the overriding objective.

Proceedings of tribunals

10.—(1) Subject to paragraphs (2) to (6), the rules in Schedule 1 shall apply in relation to all proceedings before a tribunal except where separate rules of procedure made under any statutory provision are applicable.

(2) In proceedings to which the rules in Schedule 1 apply and in which any power conferred on a Minister of the Crown or the tribunal by rule 8(1), (2) or (3) of Schedule 1 is exercised –

(a)rules 3, 4, 7, 10, 11, 12 and 13 of Schedule 1 shall be modified in accordance with Schedule 2; and

(b)rules 7A (special advocate) and 7B (reasons for the tribunal’s decision in national security cases), as referred to in paragraph 4 of Schedule 2, shall be inserted into Schedule 1.

(3) In proceedings to which the rules in Schedule 1 apply and which involve an equal value claim –

(a)rules 4, 11, 12, 14 and 15 of Schedule 1 shall be modified in accordance with Part I of Schedule 3; and

(b)rule 10A (procedure relating to expert’s report), as referred to in paragraph 2 of Part I of Schedule 3, shall be inserted into Schedule 1.

(4) In proceedings to which the rules in Schedule 1 apply, and in which the rules in Schedule 1 are required to be modified in accordance with both paragraphs (2) and (3) the insertion or, as the case may be, substitution, of rules 4(9), 7B, 11(2) and 12(5A) to (5D) in Schedule 1 shall be in accordance with Part II of Schedule 3.

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

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

(b)had the remedy been by way of action in the county court, the cause of action would have arisen wholly or partly in Northern Ireland; or

(c)the proceedings are to determine a question which has been referred to the tribunal by a court in Northern Ireland.

(6) The rules in Schedules 4, 5 and 6 shall apply in relation to proceedings before a tribunal which relate to matters arising in Northern Ireland and consist, respectively, in –

(a)an appeal by a person assessed to levy imposed under a levy order made under Article 23 of the Order of 1984;

(b)an appeal against an improvement or prohibition notice under Article 26 of the Order of 1978(21); and

(c)an appeal against a non-discrimination notice under Article 68 of the Order of 1976, Article 56 of the Order of 1997 or paragraph 10 of Schedule 1 to the Order of 2000.

Register

11.—(1) The Secretary shall maintain a Register at the Office of the Tribunals which shall be open to the inspection of any person without charge at all reasonable hours.

(2) The Register shall contain –

(a)details of originating applications in accordance with rule 2 of Schedule 1;

(b)details of appeals in accordance with rule 5 of Schedule 4, rule 3 of Schedule 5 and rule 2 of Schedule 6;

(c)the fact of applications in accordance with rule 4 of Schedule 5; and

(d)documents recording the decisions of tribunals and the reasons therefor.

(3) The register, or any part of it, may be kept by means of a computer.

Proof of decisions of tribunals

12.  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 provision

13.  These Regulations shall apply in relation to all proceedings to which they relate, irrespective of when those proceedings were commenced.

Revocations

14.  The Regulations listed in Schedule 7 are hereby revoked.

Sealed with the Official Seal of the Department for Employment and Learning on 2nd April 2004.

L.S.

R. B. Gamble

A senior officer of the

Department for Employment and Learning

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