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

Explanatory Note

(This note is not part of the Regulations.)

These Regulations revoke and replace the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996 (“the 1996 Regulations”) prescribing Rules of Procedure for Industrial Tribunals in Northern Ireland. In addition to minor and drafting amendments, re-numbering and the updating of statutory and other references, these Regulations make the following changes of substance.

Regulation 2 contains new provisions in paragraphs (6) to (10) setting out how time limits in the Regulations and in documents issued under them are to be calculated. Examples are given for interpretation of the general rules. Regulations 4 and 5 enable the President and the Vice-President of the Industrial Tribunals and the panel of tribunal chairmen to be persons legally qualified in any part of the United Kingdom. Regulations 6 and 7 are new and provide for the selection of panels of tribunal chairmen and members to hear national security cases and for modifications of Article 6 of the Industrial Tribunals (Northern Ireland) Order 1996 (“the Industrial Tribunals Order”) (composition of a tribunal) in such cases. Regulation 8 (composition of tribunals) provides that the tribunal is to be composed of a chairman and members taken from a panel of persons suitable to act in national security cases.

Regulation 9 is new and inserts an overriding objective to enable tribunals to deal with cases justly. Regulation 13 contains a transitional provision stating that the new regulations apply in respect of all cases, irrespective of when they were commenced. Regulation 14 revokes the Regulations listed in Schedule 7, namely the 1996 Regulations and the Regulations which amended them.

Schedule 1 contains the rules of procedure which apply to all industrial tribunal proceedings in the absence of other provision. Rules 1 and 3 make it clear that more than one originating application or notice of appearance may be presented in a single document.

Rule 4 of Schedule 1 is a consolidation and simplification of rules 4 and 16 of Schedule 1 to the 1996 Regulations, now headed “case management”. Paragraph (3) is new and provides that directions may relate in particular to evidence, including witness statements. Failure to comply with a direction may now lead to the penalties in paragraph (8). In rule 7(4) of Schedule 1 (pre-hearing review), the maximum amount of the deposit which may be imposed following a pre-hearing review has been increased from £150 to £500. Rule 8 of Schedule 1 is new and contains the powers which are available to the Minister of the Crown or the tribunal in national security cases to direct or order that the tribunal sit in private, that the applicant or his representative be excluded or that witnesses' identities be concealed. Where one of those powers is exercised, or where the Minister addresses the tribunal with a view to it exercising one of the powers, the modifications to Schedule 1 set out in Schedule 2 apply. Rule 8 also imposes a general duty on the tribunal concerning disclosure of information contrary to the interests of national security. Rule 9 of Schedule 1 is new and provides that tribunal proceedings for unfair dismissal may be adjourned pending the outcome of interlocutory civil proceedings under Article 97 of the Trade Union and Labour Relations (Northern Ireland) Order 1995 not actionable in tort.

Rule 14(1) of Schedule 1 (costs) is amended to make it clear that the unreasonable behaviour of a party’s representative may be taken into account when awarding costs against that party. The tribunal is also now under a duty to consider an award of costs in the circumstances described in rule 14(1), and these include circumstances where proceedings which have no reasonable prospect of success have been pursued. In rule 14(3), the maximum amount of costs which a tribunal may award without an assessment of costs is increased from £500 to £10,000. In rule 15(2) of Schedule 1 (miscellaneous powers), in sub-paragraphs (c) and (d) respectively, the term “frivolous” has been replaced with “misconceived” (defined in regulation 2(2)) and “unreasonable”. Those paragraphs permit the tribunal to strike out applications or notices of appearance in certain circumstances.

Rule 18 of Schedule 1 is new and provides for the Secretary of the Office of the Industrial Tribunals and the Fair Employment Tribunal to give notice to certain persons, including the Attorney General for Northern Ireland, in any proceedings in which a devolution issue arises. Rule 22 (notices, etc.) provides for the service of notices.

Schedule 2 is new and contains the modifications and insertions which apply to Schedule 1 when a power under rule 8(1), (2) or (3) of Schedule 1 is exercised (national security). It provides for the Attorney General to appoint a special advocate to represent the applicant’s interests in the event of his, or his representative’s exclusion (rule 7A). Provision is also made for dealing with the reasons for the tribunal’s decision in national security cases (rule 7B).

Part I of Schedule 3 contains modifications of the rules in Schedule 1 which apply in equal value cases. Only those paragraphs of the modified rules which are different from those in Schedule 1 are now specified in Schedule 3. In cases involving an equal value claim and in which a power under rule 8(1), (2) or (3) of Schedule 1 is exercised, the rules in Schedule 1 are modified in accordance with both Schedule 2 and Part I of Schedule 3, but they are subject to the modifications in Part II of Schedule 3.

The rules for use in proceedings involving appeals against the imposition of industrial levy notices issued under the Industrial Training (Northern Ireland) Order 1984 are now in Schedule 4. The rules for use in proceedings involving appeals against improvement or prohibition notices issued under the Health and Safety at Work etc. (Northern Ireland) Order 1978 are now in Schedule 5. The rules for use in proceedings involving appeals against non-discrimination notices issued under the Sex Discrimination (Northern Ireland) Order 1976 and the Race Relations (Northern Ireland) Order 1997 and appeals against such notices issued by the Equality Commission under the Equality (Disability, etc.) (Northern Ireland) Order 2000 are now in Schedule 6.

Schedule 7 sets out the Regulations which are revoked and replaced by these Regulations.