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

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[Regulation 8(1)c]

SCHEDULE 1RULES OF PROCEDURE

Originating application

1.  (1)  Where proceedings are brought by an applicant, they shall be instituted by the applicant presenting to the Secretary an originating application, which shall be in writing and shall set out—

(a)the name and address of the applicant and, if different, an address within the United Kingdom to which he requires notices and documents relating to the proceedings to be sent;

(b)the names and addresses of the person or persons against whom relief is sought; and

(c)the grounds, with particulars thereof, on which relief is sought.

(2) Where the Secretary is of the opinion that the originating application does not seek or on the facts stated therein cannot entitle the applicant to a relief which a tribunal has power to give, he may give notice to that effect to the applicant stating the reasons for his opinion and informing him that the application will not be registered unless he states in writing that he wishes to proceed with it.

(3) An application in respect of which such a notice has been given shall not be treated as having been received for the purpose of rule 2 unless the applicant intimates in writing to the Secretary that he wishes to proceed with it; and upon receipt of such an intimation the Secretary shall proceed in accordance with that rule.

(4) In the case of an originating application in respect of a complaint under section 6(4A) of the 1986 Act(1) relating to a term of a collective agreement, the following persons, whether or not identified in the originating application, shall be regarded as the persons against whom relief is sought and shall be treated as respondents for the purposes of these rules, that is to say—

(a)the applicant’s employer (or prospective employer), and

(b)every organisation of employers and organisation of workers, and every association of or representative of such organisations, which, if the term were to be varied voluntarily, would be likely, in the opinion of the tribunal, to negotiate the variation;

provided that such an organisation or association shall not be treated as a respondent if the tribunal, having made such enquiries of the applicant and such other enquiries as it thinks fit, is of the opinion that it is not reasonably practicable to identify the organisation or association.

(5) Where proceedings are referred to a tribunal by a court, these rules shall be applied to them, except where the rules are inappropriate, as if the proceedings had been instituted by the presentation of an originating application.

Action upon receipt of originating application

2.  (1)  Upon receiving an originating application the Secretary shall—

(a)send a copy of it to the respondent;

(b)give every party notice in writing of the case number of the application (which shall constitute the title of the proceedings) and of the address to which notices and other communications to the Secretary shall be sent; and

(c)send to the respondent a notice in writing which includes information, as appropriate to the case, about the means and time for entering an appearance, the consequences of failure to do so, and the right to receive a copy of the decision.

(2) The Secretary shall, subject to rule 13(6), enter particulars of an originating application in the Register either within 28 days of receiving it or, if that is not practicable, as soon as reasonably practicable thereafter.

(3) The Secretary shall also, in all cases, notify the parties that in every case where an enactment provides for conciliation, the services of a conciliation officer are available to them.

Appearance by respondent

3.  (1)  A respondent shall, within 14 days of receiving the copy of the originating application, enter an appearance to the proceedings by presenting to the Secretary a written notice of appearance—

(a)setting out his full name and address and, if different, an address within the United Kingdom to which he requires notices and documents relating to the proceedings to be sent;

(b)stating whether or not he intends to resist the application; and

(c)if he does intend to resist it, setting out sufficient particulars to show on what grounds.

  • Upon receipt of a notice of appearance the Secretary shall send a copy of it to each other party.

(2) A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except—

(a)to apply under rule 15 for an extension of the time appointed by this rule for entering an appearance;

(b)to make an application under rule 4(1)(a);

(c)to make an application under rule 11(4) in respect of rule 11(1)(b);

(d)to be called as a witness by another person;

(e)to be sent a copy of a document or corrected entry in pursuance of rule 10(5), 10(10) or 10(11);

and in the rules which follow, the word “party” only includes such a respondent in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes.

(3) A notice of appearance which is presented to the Secretary after the time appointed by this rule for entering appearances shall be deemed to include an application under rule 15(1) (by the respondent who presented the notice) for an extension of the time so appointed.

(4) Without prejudice to rule 15(3), if a chairman grants an application deemed to be included in a notice of appearance by paragraph (3) (which he may do notwithstanding that the grounds of the application are not stated) the Secretary shall send a copy of the notice of appearance to each other party.

(5) A chairman shall not refuse such an application unless he has sent notice to the person wishing to enter an appearance giving that person an opportunity to show cause why an extension should be granted.

Power to require further particulars and attendance of witnesses and to order recovery of documents

4.  (1)  A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion—

(a)require a party to furnish in writing to the person specified by the tribunal further particulars of the grounds on which that party relies and of any facts and contentions relevant thereto,

(b)require one party to grant to another such recovery or inspection (including the taking of copies) of documents as might be ordered by a sheriff,

and may appoint the time at or within which and the place at which any act required in pursuance of this rule is to be done.

(2) A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion—

(a)require the attendance of any person, including a party, as a witness, wherever such person may be within Great Britain, and

(b)if it does so require the attendance of a person, require him to produce any document relating to the matter to be determined,

and may appoint the time and place at which the person is to attend and, where appropriate, the time at or within which and the place at which any such document is to be produced.

(3) A tribunal may, on the application of a party made by notice to the Secretary or of its own motion, require a party in writing to furnish to the tribunal a written answer to any question if it considers—

(a)that the answer of the party to that question may help to clarify any issue likely to arise for determination in the proceedings, and

(b)that it would be likely to assist the progress of the proceedings for that answer to be available to the tribunal before the hearing,

and may appoint the time within which the written answer is to be furnished. Upon the imposition of such a requirement, the Secretary shall send a copy of the requirement to each other party; and he shall send a copy of the answer to each other party.

(4) The tribunal shall take account of a written answer furnished pursuant to paragraph (3) in the same way as it takes account of representations in writing presented by a party pursuant to rule 8(5).

(5) Where a requirement has been imposed under paragraph (1),(2) or (3)—

(a)on a party in his absence; or

(b)on a person other than a party,

that party or person may make an application to the tribunal to vary or set aside the requirement by notice to the Secretary given before the time at which or, as the case may be, the expiration of the time within which the requirement is to be complied with; and the Secretary shall give notice of the application to each party or, where applicable, to each party other than the party making the application.

(6) Every document containing a requirement imposed under paragraph (1)(b) or (2) shall contain a reference to the fact that, under paragraph 1(7) of Schedule 9 to the 1978 Act, any person who without reasonable excuse fails to comply with any such requirement shall be liable on summary conviction to a fine, and the document shall state the amount of the current maximum fine.

(7) If a requirement under paragraph (1) or (3) is not complied with, a tribunal, before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether: but a tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so.

Time and place of hearing

5.  (1)  The President or a Regional Chairman shall fix the date, time and place of the hearing of the originating application and the Secretary shall send to each party a notice of hearing together with information and guidance as to attendance at the hearing, witnesses and the bringing of documents, representation by another person and the making of written representations.

(2) The Secretary shall send the notice of hearing to every party not less than 14 days before the date fixed for the hearing except—

(a)where the Secretary has agreed a shorter time with the parties; or

(b)on an application for interim relief made under section 77 of the 1978 Act or section 161 of the 1992 Act.

Entitlement to bring or contest the proceedings.

6.  (1)  A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates.

(2) A tribunal shall not determine such an issue unless the Secretary has sent notice to each of the parties giving them an opportunity to submit representations in writing and to advance oral argument before the tribunal.

Pre-hearing review

7.  (1)  A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of—

(a)the contents of the originating application and notice of appearance;

(b)any representations in writing; and

(c)any oral argument advanced by or on behalf of a party.

(2) If a party applies for a pre-hearing review and the tribunal determines that there shall be no review, the Secretary shall send notice of the determination to that party.

(3) A pre-hearing review shall not take place unless the Secretary has sent notice to the parties giving them an opportunity to submit representations in writing and to advance oral argument at the review if they so wish.

(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter.

(5) No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit.

(6) An order made under this rule, and the tribunal’s reasons for considering that the contentions in question have no reasonable prospect of success, shall be recorded in summary form in a document signed by the chairman. A copy of that document shall be sent to each of the parties and shall be accompanied by a note explaining that if the party against whom the order is made persists in participating in proceedings relating to the matter to which the order relates, he may have an award of expenses made against him and could lose his deposit.

(7) If a party against whom an order has been made does not remit the amount specified in the order to the Secretary either—

(a)within the period of 21 days beginning with the day on which the document recording the making of the order is sent to him, or

(b)within such further period, not exceeding 14 days, as the tribunal may allow in the light of representations made by that party within the said period of 21 days,

the tribunal shall strike out the originating application or notice of appearance of that party or, as the case may be, the part of it to which the order relates.

(8) The deposit paid by a party under an order made under this rule shall be refunded to him in full except where—

(a)the tribunal has found against that party in a decision on the matter in respect of which the party was ordered to pay the deposit; and

(b)an award of expenses has been made against that party (whether arising out of the proceedings relating to that matter or out of proceedings relating to any other matter considered with that matter).

(9) No member of a tribunal which has conducted a pre-hearing review shall be a member of the tribunal at the hearing of the originating application.

The hearing

8.  (1)  Any hearing of an originating application shall be heard by a tribunal composed in accordance with section 128(2A), (2B) and (2C), or section 128(6), of the 1978 Act.

(2) Any hearing of or in connection with an originating application shall take place in public except where a Minister of the Crown has directed a tribunal to sit in private on grounds of national security in accordance with paragraph 1(4A) of Schedule 9 to the 1978 Act.

(3) Notwithstanding paragraph (2), a tribunal may sit in private for the purpose of—

(a)hearing evidence which in the opinion of the tribunal relates to matters of such a nature that it would be against the interests of national security to allow the evidence to be given in public; or

(b)hearing evidence from any person which in the opinion of the tribunal is likely to consist of—

(i)information which he could not disclose without contravening a prohibition imposed by or under any enactment, or

(ii)any information which has been communicated to him in confidence, or which he has otherwise obtained in consequence of the confidence reposed in him by another person, or

(iii)information the disclosure of which would cause substantial injury to any undertaking of his or any undertaking in which he works for reasons other than its effect on negotiations with respect to any of the matters mentioned in section 244(1) of the 1992 Act.

(4) A member of the Council on Tribunals or of its Scottish Committee shall be entitled to attend any hearing taking place in private in his capacity as a member.

(5) If a party wishes to submit representations in writing for consideration by a tribunal at the hearing of the originating application he shall present his representations to the Secretary not less than 7 days before the hearing and shall at the same time send a copy to each other party.

(6) The Secretary of State if he so elects shall be entitled to appear as if he were a party and be heard at any hearing of or in connection with an originating application in proceedings which may involve a payment out of the National Insurance Fund, and in that event he shall be treated for the purposes of these rules as if he were a party.

Procedure at hearing

9.  (1)  The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.

(2) Subject to paragraph (1), at the hearing of the originating application a party shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal.

(3) If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3).

(4) A tribunal may require any witness to give evidence on oath or affirmation and for that purpose there may be administered an oath or affirmation in due form.

Decision of tribunal

10.  (1)  Where a tribunal is composed of three members its decision may be taken by a majority; and if a tribunal is composed of two members only, the chairman shall have a second or casting vote.

(2) The decision of a tribunal, which may be given orally at the end of a hearing or reserved, shall be recorded in a document signed by the chairman.

(3) The tribunal shall give reasons for its decision in a document signed by the chairman. That document shall contain a statement as to whether the reasons are given in summary or extended form and where the tribunal—

(a)makes an award of compensation, or

(b)comes to any other determination by virtue of which one party is required to pay a sum to another (excluding an award of expenses or allowances),

the document shall also contain a statement of the amount of compensation awarded, or of the sum required to be paid, followed either by a table showing how the amount or sum has been calculated or by a description of the manner in which it has been calculated.

(4) The reasons for the decision of the tribunal shall be given in summary form except where—

(a)the proceedings involved the determination of an issue arising under or relating to the 1970 Act, the 1975 Act, the 1986 Act or the 1976 Act;

(b)a request that the reasons be given in extended form is made orally at the hearing by a party;

(c)such a request is made in writing by a party after the hearing either—

(i)before any document recording the reasons in summary form is sent to the parties, or

(ii)within 21 days of the date on which that document was sent to the parties; or

(d)the tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision;

and in those circumstances the reasons shall be given in extended form.

(5) The clerk shall transmit the documents referred to in paragraphs (2) and (3) to the Secretary who shall enter them in the Register and shall send a copy of the entry to each of the parties and, where the proceedings were referred to the tribunal by a sheriff, to that sheriff.

(6) The document referred to in paragraph (3) shall be omitted from the Register in any case in which—

(a)a Minister of the Crown has directed the tribunal, in accordance with paragraph 1(4A) of Schedule 9 to the 1978 Act, to sit in private on grounds of national security, or

(b)evidence has been heard in private and the tribunal so directs.

  • In such a case the Secretary shall send that document to each of the parties; and where there are proceedings before an appellate court relating to the decision in question, he shall send the document to that court, together with a copy of the entry in the Register of the document referred to in paragraph (2).

(7) In any case appearing to involve allegations of a sexual offence, the document referred to in paragraph (3) shall be entered on the register with such deletions or amendments as have been made in accordance with rule 13(6).

(8) The Register shall be kept at the Office of the Tribunals and shall be open to the inspection of any person without charge at all reasonable hours.

(9) Clerical mistakes in the documents referred to in paragraphs (2) and (3), or errors arising in those documents from an accidental slip or omission, may at any time be corrected by the chairman by certificate under his hand.

(10) If a document is corrected by certificate under paragraph (9), or if a decision is—

(a)reviewed, revoked or varied by certificate under rule 11, or

(b)altered in any way by order of an appellate court,

the Secretary shall alter any entry in the Register which is affected to conform with the certificate or order and send a copy of any entry so altered to each of the parties and, where the proceedings were referred to the tribunal by a sheriff, to that sheriff.

(11) Where a document omitted from the Register pursuant to paragraph (6) is corrected by certificate under paragraph (9), the Secretary shall send a copy of the corrected document to each of the parties; and where there are proceedings before any appellate court relating to the decision in question, he shall send a copy to that court together with a copy of the entry in the Register of the document referred to in paragraph (2), if it has been altered under paragraph (10).

(12) Where this rule requires a document to be signed by the chairman of a tribunal composed of three or two persons, but by reason of death or incapacity the chairman is unable to sign it, the document shall be signed by the other members or member of the tribunal, who shall certify that the chairman is unable to sign.

Review of tribunal’s decision

11.  (1)  Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that—

(a)the decision was wrongly made as a result of an error on the part of the tribunal staff;

(b)a party did not receive notice of the proceedings leading to the decision;

(c)the decision was made in the absence of a party;

(d)new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or

(e)the interests of justice require such a review.

(2) A tribunal may not review a decision of its own motion unless it is the tribunal which issued the decision.

(3) A tribunal may only review a decision of its own motion if, within the period beginning with the date of the hearing and ending with the fourteenth day after the date on which the decision was sent to the parties, it has sent notice to each of the parties explaining in summary form the ground upon which and reasons why it is proposed to review the decision and giving them an opportunity to show cause why there should be no review.

(4) An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full.

(5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success.

(6) If such an application is not refused under paragraph (5) it shall be heard by the tribunal which decided the case, or—

(a)where it is not practicable for it to be heard by that tribunal, or

(b)where the decision was made by a chairman acting alone under rule 13(8), by a tribunal appointed by either the President or a Regional Chairman.

(7) On reviewing its decision a tribunal may confirm the decision, or vary or revoke the decision under the chairman’s hand; and if it revokes the decision, the tribunal shall order a re-hearing before either the same or a differently constituted tribunal.

Expenses

12.  (1)  Where, in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, the tribunal may make—

(a)an order containing an award against that party in respect of the expenses incurred by another party;

(b)an order that that party shall pay to the Secretary of State the whole, or any part, of any allowances (other than allowances paid to members of tribunals) paid by the Secretary of State under paragraph 10 of Schedule 9 to the 1978 Act to any person for the purposes of, or in connection with, his attendance at the tribunal.

(2) Paragraph (1) applies to a respondent who has not entered an appearance in relation to the conduct of any part in the proceedings which he has taken.

(3) An order containing an award against a party (“the first party”) in respect of the expenses incurred by another party (“the second party”) shall be—

(a)where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £500;

(b)where those parties agree on a sum to be paid by the first party to the second party in respect of those expenses, an order that the first party pay to the second party a specified sum, being the sum so agreed; or

(c)in any other case, an order that the first party pay to the second party the whole or a specified part of the expenses incurred by the second party as taxed (if not otherwise agreed).

(4) Where the tribunal has on the application of a party postponed the day or time fixed for or adjourned the hearing, the tribunal may make orders, of the kinds mentioned in paragraphs (1)(a) and (1)(b), against or, as the case may require, in favour of that party as respects any expenses incurred or any allowances paid as a result of the postponement or adjournment.

(5) A tribunal shall make orders against a respondent of the kinds mentioned in paragraphs (1)(a) and (1)(b) as respects any expenses or any allowances paid as a result of the postponement or adjournment of a hearing where, on a complaint of unfair dismissal—

(a)the applicant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent at least 7 days before the hearing of the complaint, or

(b)the proceedings arise out of the respondent’s failure to permit the applicant to return to work after an absence due to pregnancy or confinement,

and the postponement or adjournment has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the applicant was dismissed, or, as the case may be, which she held before her absence, or of comparable or suitable employment.

(6) Any expenses required by an order under this rule to be taxed may be taxed according to such part of the table of fees prescribed for proceedings in the sheriff court as shall be directed by the order, and thereafter the tribunal may issue an order for payment of the amount as taxed.

(7) Where—

(a)a party has been ordered under rule 7 to pay a deposit as a condition of being permitted to continue to participate in proceedings relating to a matter,

(b)in respect of that matter, the tribunal has found against that party in its decision, and

(c)there has been no award of expenses made against that party arising out of the proceedings on the matter,

the tribunal shall consider whether to award expenses against that party on the ground that he conducted the proceedings relating to the matter unreasonably in persisting in having the matter determined by a tribunal; but the tribunal shall not make an award of expenses on that ground unless it has considered the document recording the order under rule 7 and is of the opinion that the reasons which caused the tribunal to find against the party in its decision were substantially the same as the reasons recorded in that document for considering that the contentions of the party had no reasonable prospect of success.

(8) Where an award of expenses is made against a party who has had an order under rule 7 made against him (whether the award arises out of the proceedings relating to the matter in respect of which the order was made or out of proceedings relating to any other matter considered with that matter), his deposit shall be paid in part or full settlement of the award—

(a)where an award is made in favour of one party, to that party, and

(b)where awards are made in favour of more than one party, to all of them or any one or more of them as the tribunal thinks fit, and if to all or more than one, in such proportions as the tribunal considers appropriate,

and if the amount of the deposit exceeds the amount of the award of expenses, the balance shall be refunded to the party who paid it.

Miscellaneous powers

13.  (1)  Subject to the provisions of these rules, a tribunal may regulate its own procedure.

(2) A tribunal may—

(a)if the applicant at any time gives notice of the withdrawal of his originating application, dismiss the proceedings;

(b)if both or all the parties agree in writing upon the terms of a decision to be made by the tribunal, decide accordingly;

(c)consider representations in writing which have been submitted by a party to the Secretary (pursuant to rule 8(5)) less than 7 days before the hearing;

(d)subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, frivolous or vexatious;

(e)subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, frivolous or vexatious; and

(f)subject to paragraph (3), on the application of the respondent, or of its own motion, order an originating application to be struck out for excessive delay in proceeding with it.

(3) Before making an order under sub-paragraph (d), (e) or (f) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made.

(4) Where a notice required by paragraph (3) is sent in relation to an order to strike out an originating application for excessive delay in proceeding with it, service of the notice shall be treated as having been effected if it has been sent by post or delivered in accordance with rule 20(3) and the tribunal may strike out the originating application (notwithstanding that there has been no direction for substituted service in accordance with rule 20(6)) if the party does not avail himself of the opportunity given by the notice.

(5) A tribunal may, before determining an application under rule 4 or rule 17, require the party making the application to give notice of it to every other party. The notice shall give particulars of the application and indicate the address to which and the time within which any objection to the application shall be made, being an address and time specified for the purposes of the application by the tribunal.

(6) In any case appearing to involve allegations of the commission of a sexual offence, the tribunal or the Secretary shall omit from the Register, or delete from the Register or any decision, document or record of the proceedings, which is available to the public, any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation.

(7) A chairman may postpone the day or time fixed for, or adjourn, any hearing (particularly where an enactment provides for conciliation in relation to the case, for the purpose of giving an opportunity for the case to be settled by way of conciliation and withdrawn) and vary any such postponement or adjournment.

(8) Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except—

(a)the hearing of an originating application under rule 8;

(b)an act required or authorised to be so done by rule 9 or 10 which the rule implies is to be done by (he tribunal which is hearing or heard the originating application;

(c)the review of a decision under rule 11(1), and the confirmation, variation or revocation of a decision, and ordering of a re-hearing, under rule 11(6).

(9) Any act required or authorised by rules 3(4) and (5), 13(7) and 15 to be done by a chairman may be done by a tribunal or on the direction of a chairman.

(10) Any function of the Secretary may be performed by an Assistant Secretary or by a person acting with the authority of the Secretary or of an Assistant Secretary.

Restricted reporting orders

14.  (1)  In any case which involves allegations of sexual misconduct the tribunal may at any time before promulgation of its decision in respect of an originating application, either on the application of a party made by notice to the Secretary or of its own motion, make a restricted reporting order.

(2) The tribunal shall not make a restricted reporting order unless it has given each party an opportunity to advance oral argument at a hearing, if they so wish.

(3) Where a tribunal makes a restricted reporting order—

(a)it shall specify in the order the persons who may not be identified;

(b)the order shall remain in force until the promulgation of the decision of the tribunal on the originating application to which it relates unless revoked earlier; and

(c)the Assistant Secretary shall ensure that a notice of that fact is displayed on the notice board of the tribunal with any list of the proceedings taking place before the industrial tribunal, and on the door of the room in which the proceedings affected by the order are taking place.

(4) A tribunal may revoke a restricted reporting order at any time if it thinks fit.

(5) For the purposes of this rule “promulgation” occurs on the date recorded as being the date on which the document recording the determination of the originating application was sent to the parties.

Extension of time

15.  (1)  A chairman may, on the application of a party or of his own motion, extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired.

(2) An application under paragraph (1) shall be made by presenting to the Secretary a notice of application, which shall state the title of the proceedings and shall set out the grounds of the application.

(3) The Secretary shall give notice to each of the parties of any extension of time granted under this rule.

Directions

16.  (1)  A tribunal may at any time, on the application of a party or of its own motion, give directions on any matter arising in connection with the proceedings.

(2) An application under paragraph (1) shall be made by presenting to the Secretary a notice of application, which shall state the title of the proceedings and set out the grounds of the application.

Sisted and representative respondents

17.  (1)  A tribunal may at any time, on the application of any person made by notice to the Secretary or of its own motion, direct any person against whom any relief is sought to be sisted as a party, and give such consequential directions as it considers necessary.

(2) A tribunal may likewise, on such application or of its own motion, order that any respondent named in the originating application or subsequently added, who appears to the tribunal not to have been, or to have ceased to be, directly interested in the subject of the originating application, be dismissed from the proceedings.

(3) Where there are a number of persons having the same interest in an originating application, one or more of them may be cited as the person or persons against whom relief is sought, or may be authorised by the tribunal, before or at the hearing, to defend on behalf of all the persons so interested.

Combined proceedings

18.  (1)  Where, in relation to two or more originating applications pending before the industrial tribunals, it appears to an industrial tribunal, on the application of a party made by notice to the Secretary or of its own motion, that—

(a)a common question of law or fact arises in some or all of those originating applications, or

(b)the relief claimed in some or all of those originating applications is in respect of or arises out of the same set of facts, or

(c)for any other reason it is desirable to make an order under this rule,

the tribunal may order that some (as specified in the order) or all of the originating applications in respect of which it so appears to the tribunal shall be considered together, and may give such consequential directions as may be necessary.

(2) The tribunal shall only make an order under this rule if—

(a)each of the parties concerned has been given an opportunity at a hearing to show cause why such an order should not be made; or

(b)it has sent notice to all the parties concerned giving them an opportunity to show such cause.

(3) The tribunal may, on the application of a party made by notice to the Secretary or of its own motion, vary or set aside an order made under this rule but shall not do so unless it has given each party an opportunity to make either oral or written representations before the order is varied or set aside.

Transfer of proceedings

19.  (1)  On the application of a party made by notice to the Secretary or of his own motion, the President or a Regional Chairman may at any time, with the consent of the President of the Industrial Tribunals (England and Wales), direct any proceedings to be transferred to the Office of the Industrial Tribunals (England and Wales) if it appears to him that the proceedings could be, and would more conveniently be, determined in an industrial tribunal (England and Wales) established in pursuance of the Industrial Tribunals (Constitution and Procedure) Regulations 1993(2); but no such direction shall be made unless notice has been sent to all parties concerned giving them an opportunity to show cause why a direction should not be made.

(2) Where proceedings have been transferred to the Office of the Industrial Tribunals (Scotland) under rule 19(1) of the Industrial Tribunals Rules of Procedure 1993 they shall be treated as if in all respects they had been commenced by an originating application pursuant to rule 1.

Notices, etc.

20.  (1)  Any notice given under these rules shall be in writing.

(2) All notices and documents required by these rules to be presented to the Secretary may be presented at the Office of the Tribunals or such other office as may be notified by the Secretary to the parties.

(3) All notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post (subject to paragraph (5)) or delivered to or at—

(a)in the case of a notice or document directed to the Secretary of State in proceedings to which he is not a party (or in respect of which he is treated as a party for the purposes of these rules by virtue of rule 8(6)), the offices of the Department of Employment (Redundancy and Insolvency Branch) at Caxton House, Tothill Street, London SW1H 9NF, or such other office as may be notified by the Secretary of State;

(b)in the case of a notice or document directed to a sheriff, the office of the sheriff clerk;

(c)in the case of a notice or document directed to a party—

(i)the address specified in his originating application or notice of appearance to which notices and documents are to be sent, or in a notice under paragraph (4), or

(ii)if no such address has been specified, or if a notice sent to such an address has been returned, to any other known address or place of business in the United Kingdom or, if the party is a corporate body, the body’s registered or principal office in the United Kingdom, or, in any case, such address or place outside the United Kingdom as the President or a Regional Chairman may allow;

(d)in the case of a notice or document directed to any person (other than a person specified in the foregoing provisions of this paragraph), his address or place of business in the United Kingdom or, if the person is a corporate body, the body’s registered or principal office in the United Kingdom;

and a notice or document sent or given to the authorised representative of a party shall be deemed to have been sent or given to that party.

(4) A party may at any time by notice to the Secretary and to the other party or parties (and, where appropriate, to the appropriate conciliation officer) change the address to which notices and documents are to be sent.

(5) The recorded delivery service shall be used instead of the ordinary post—

(a)when a second set of notices or documents is sent to a respondent who has not entered an appearance under rule 3(1); and

(b)for service of an order made under rule 4(2).

(6) The President or a Regional Chairman may direct that there shall be substituted service in such manner as he may deem fit in any case he considers appropriate.

(7) In proceedings brought under the provisions of any enactment providing for conciliation the Secretary shall send copies of all documents and notices to a conciliation officer who in the opinion of the Secretary is an appropriate officer to receive them.

(8) In proceedings which may involve a payment out of the National Insurance Fund, the Secretary shall, where appropriate, send copies of all documents and notices to the Secretary of State whether or not he is a party.

(9) In proceedings under the 1970 Act, the 1975 Act or the 1986 Act, or the 1976 Act, the Secretary shall send to the Equal Opportunities Commission or, as the case may be, the Commission for Racial Equality copies of every document and copy entry sent to the parties under rules 10(5) and 10(10).

[Regulation 8(2)]

SCHEDULE 2COMPLEMENTARY RULES OF PROCEDUREFor use only in proceedings involving an equal value claim

Power to require further particulars and attendance of witnesses and to order recovery of documents

4.  (1)  A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion—

(a)require a party to furnish in writing to the person specified by the tribunal further particulars of the grounds on which that party relies and of any facts and contentions relevant thereto,

(b)require one party to grant to another such recovery or inspection (including the taking of copies) of documents as might be granted by a sheriff,

and may appoint the time at or within which and the place at which any act required in pursuance of this rule is to be done.

(2) A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion—

(a)require the attendance of any person, including a party, as a witness, wherever such person may be within Great Britain, and

(b)if it does so require the attendance of a person, require him to produce any document relating to the matter to be determined,

and may appoint the time and place at which the person is to attend and, where appropriate, the time at or within which and the place at which any such document is to be produced.

(2A) Subject to paragraph (2B), a tribunal may, on the application of an expert who has been required by the tribunal to prepare a report—

(a)require any person who the tribunal is satisfied may have information which may be relevant to the question or matter on which the expert is required to report to furnish, in writing, such information as the tribunal may require;

(b)require any person to produce any documents which are in the possession, custody or power of that person and which the tribunal is satisfied may contain matter relevant to the question on which the expert is required to report;

and any information so required to be furnished or document so required to be produced shall be furnished or produced, at or within such time as the tribunal may appoint, to the Secretary who shall send the information or document to the expert.

(2B) A tribunal shall not make a requirement under paragraph (2A)—

(a)of a conciliation officer who has acted in connection with the complaint under section 64 of the 1975 Act, or

(b)if it is satisfied that the person so required would have good grounds for refusing to comply with the requirement if it were a requirement made in connection with a hearing before the tribunal.

(3) A tribunal may, on the application of a party made by notice to the Secretary or of its own motion, require a party in writing to furnish to the tribunal a written answer to any question if it considers—

(a)that the answer of the party to that question may help to clarify any issue likely to arise for determination in the proceedings, and

(b)that it would be likely to assist the progress of the proceedings for that answer to be available to the tribunal before the hearing,

and may appoint the time within which the written answer is to be furnished. Upon the imposition of such a requirement, the Secretary shall send a copy of the requirement to each other party; and he shall send a copy of the answer to each other party.

(4) The tribunal shall take account of a written answer furnished pursuant to paragraph (3) in the same way as it takes account of representations in writing presented by a party pursuant to rule 8(5).

(5) Where a requirement has been imposed under paragraph (1),(2) or (3)—

(a)on a party in his absence; or

(b)on a person other than a party,

that party or person may make an application to the tribunal to vary or set aside the requirement by notice to the Secretary given before the time at which or, as the case may be, the expiration of the time within which the requirement is to be complied with; and the Secretary shall give notice of the application to each party or, where applicable, to each party other than the party making the application.

(5A) A person, whether or not a party, upon whom a requirement has been made under paragraph (2A), may apply to the tribunal by notice to the Secretary before the appointed time at or within which the requirement is to be complied with to vary or set aside the requirement. Notice of such application shall be given to the parties and to the expert upon whose application the requirement was made.

(6) Every document containing a requirement imposed under paragraph (1)(b), (2) or (2A) shall contain a reference to the fact that, under paragraph 1(7) of Schedule 9 to the 1978 Act, any person who without reasonable excuse fails to comply with any such requirement shall be liable on summary conviction to a fine, and the document shall state the amount of the current maximum fine.

(7) If a requirement under paragraph (1) or (3) is not complied with, a tribunal, before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether: but a tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so.

Procedure relating to expert’s report

8A.  (1)  In any case involving an equal value claim where a dispute arises as to whether any work is of equal value to other work in terms of the demands made on the person employed on the work (for instance under such headings as effort, skill and decision) (in this rule hereinafter referred to as “the question”), a tribunal shall, before considering the question, except in cases to which section 2A(1)(a) of the Equal Pay Act applies, require an expert to prepare a report with respect to the question and the requirement shall be made in accordance with paragraphs (2) and (3).

(2) The requirement shall be made in writing and shall set out—

(a)the name and address of each of the parties;

(b)the address of the establishment at which the applicant is (or, as the case may be, was) employed;

(c)the question; and

(d)the identity of the person with reference to whose work the question arises;

and a copy of the requirement shall be sent to each of the parties.

(3) The requirement shall stipulate that the expert shall—

(a)take account of all such information supplied and all such representations made to him as have a bearing on the question;

(b)before drawing up his report, produce and send to the parties a written summary of the said information and representations and invite the representations of the parties upon the material contained therein;

(c)make his report to the tribunal in a document which shall reproduce the summary and contain a brief account of any representations received from the parties upon it, any conclusion he may have reached upon the question and the reasons for that conclusion or, as the case may be, for his failure to reach such a conclusion;

(d)take no account of the difference of sex and at all times act fairly.

(4) Where a tribunal requires an expert to prepare a report, it shall adjourn the hearing.

(5) The expert shall, either within 14 days of receiving the requirement or, where paragraph (6) applies, as soon as practicable thereafter, give notice in writing to the Secretary of the date by which he expects to send his report to the tribunal, and the Secretary shall send a copy of the notice to each party.

(6) If the expert considers that he is unable to determine the date referred to in paragraph (5) within the period of 14 days mentioned in that paragraph, he shall promptly give notice in writing to the Secretary of the reasons for his inability to determine that date and of the date by which he expects to be able to send the notice mentioned in that paragraph. The Secretary shall send a copy of any notice sent under this paragraph to each party.

(7) In paragraphs (8),(9) and (10), “the projected date”means the date most recently specified by the expert, in a notice given under paragraph (5) or (8) or in a progress report sent to the tribunal under paragraph (9), as the date by which he expects to send his report to the tribunal.

(8) If at any time the expert considers that there will be a material delay in sending his report to the tribunal beyond the projected date, he shall give notice in writing to the Secretary of—

(a)that fact,

(b)the date by which he now expects to send his report to the tribunal, and

(c)the reasons for the delay including, in particular, whether he considers that any actions or failures to act by a party have, in whole or in part, caused the delay.

  • The Secretary shall send a copy of any such notice to each party.

(9) At any time before the tribunal receives the report of the expert the tribunal may, acting on the request of a party or otherwise, require the expert to send a progress report to the tribunal. If so required, the expert shall, as soon as practicable—

(a)if he receives the requirement before the projected date and has not sent his report, prepare and send to the tribunal a progress report—

(i)stating whether he considers that there will be any material delay in sending his report to the tribunal beyond the projected date, and

(ii)if he considers that there will be such a delay, giving the reasons for the delay and stating the date by which he now expects to send his report to the tribunal;

(b)if he receives the requirement on or after the projected date and has not sent his report, prepare and send to the tribunal a progress report giving the reasons for the delay in sending his report and stating the date by which he now expects to send his report to the tribunal;

(c)if he has sent his report to the tribunal, notify the Secretary of that fact.

  • The Secretary shall send a copy of any progress report sent to the tribunal under this rule to each party.

(10) If a tribunal considers that—

(a)the projected date specified in a notice given under paragraph (5) indicates that the expert will take longer than is appropriate to prepare his report, or

(b)the projected date specified in a notice given under paragraph (8) or in a progress report sent to the tribunal under paragraph (9) indicates that there will be an unjustifiable delay beyond the previous projected date,

the tribunal may, after seeking representations from the parties and if it considers that it would be in the interests of justice to replace the expert, revoke, by notice in writing to the expert, the requirement to prepare a report; and in that event paragraph (1) shall again apply.

(11) Where a tribunal has received the report of an expert, it shall send a copy of the report to each party and fix a date for the hearing of the case to be resumed; and the date so fixed shall be the earliest reasonably practicable date after the expiration of 14 days from the date on which the report is sent to the parties.

(12) Upon the resumption of the hearing of the case in accordance with paragraph (11) the report shall be admitted as evidence in the case unless the tribunal has exercised its power under paragraph(13) not to admit the report.

(13) Where the tribunal, on the application of one or more of the parties or otherwise, forms the view—

(a)that the expert has not complied with a stipulation in paragraph (3), or

(b)that the conclusion contained in the report is one which, taking due account of the information supplied and representations made to the expert, could not reasonably have been reached, or

(c)that for some other material reason (other than disagreement with the conclusion that the applicant’s work is or is not of equal value or with the reasoning leading to that conclusion) the report is unsatisfactory,

the tribunal, may if it thinks fit, determine not to admit the report, and in such a case paragraph (1) shall again apply.

(14) In forming its view on the matters contained in paragraph (13)(a),

(b)and (c) the tribunal shall take account of any representations of the parties thereon and may in that connection, subject to rule 9 (2A) and (2B), permit any party to give evidence upon, to call witnesses and to question any witness upon any matter relevant thereto.

(15) The tribunal may, at any time after it has received the report of an expert, require that expert(or, if that is impracticable, another expert) to explain any matter contained in that report or, having regard to such matters as may be set out in the requirement, to give further consideration to the question.

(16) A requirement under paragraph (15) shall be made in accordance with paragraph (2) and shall stipulate that the expert shall make his reply in writing to the tribunal, giving his explanation or, as the case may be, setting down any conclusion which may result from his further consideration and his reasons for that conclusion.

(17) Where the tribunal has received a reply from the expert under paragraph (16), it shall send a copy of the reply to each of the parties and shall allow the parties to make representations thereon, and the reply shall be treated as information furnished to the tribunal and be given such weight as the tribunal thinks fit.

(18) Where a tribunal has determined not to admit a report under paragraph (13), that report shall be treated for all purposes (other than the award of expenses or allowances under rule 12) connected with the proceedings as if it had not been received by the tribunal and no further account shall be taken of it, and the requirement on the expert to prepare a report shall lapse.

Procedure at hearing

9.  (1)  The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and, subject to paragraphs (2A), (2B), (2C), (2D) and (2E), shall otherwise conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings.

(2) Subject to paragraphs (1), (2A), (2B), (2C) and (2D), at the hearing of the originating application a party shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal.

(2A) The tribunal may, and shall upon the application of a party, require the attendance of an expert who has prepared a report in connection with an equal value claim in any hearing relating to that claim. Where an expert attends in compliance with such requirement any party may, subject to paragraph (1), cross-examine the expert on his report and on any other matter pertaining to the question on which the expert was required to report.

(2B) At any time after the tribunal has received the report of the expert, any party may, on giving reasonable notice of his intention to do so to the tribunal and to any other party to the claim, call one witness to give expert evidence on the question on which the tribunal has required the expert to prepare a report; and where such evidence is given, any other party may cross-examine the person giving that evidence upon it.

(2C) Except as provided in rule 8A(14) or by paragraph (2D), no party may give evidence upon, or question any witness upon, any matter of fact upon which a conclusion in the report of the expert is based.

(2D) Subject to paragraphs (2A) and (2B), a tribunal may, notwithstanding paragraph (2C), permit a party to give evidence upon, to call witnesses and to question any witness upon any such matters of fact as are referred to in paragraph (2C) if either—

(a)the matter of fact is relevant to and is raised in connection with the issue contained in subsection (3) of section 1 of the Equal Pay Act (defence of genuine material factor) upon which the determination of the tribunal is being sought; or

(b)the report of the expert contains no conclusion on the question of whether the applicant’s work and the work of the person identified in the requirement of the tribunal under rule 8A(2) are of equal value and the tribunal is satisfied that the absence of that conclusion is wholly or mainly due to the refusal or deliberate omission of a person required by the tribunal under rule 4(1A) to furnish information or to produce documents to comply with that requirement.

(2E) A tribunal may, on the application of a party, if in the circumstances of the case, having regard to the considerations expressed in paragraph (1), it considers that it is appropriate so to proceed, hear evidence upon and permit the parties to address it upon the issue contained in subsection (3) of section 1 of the Equal Pay Act (defence of genuine material factor) before it requires an expert to prepare a report under rule 8A.Where the tribunal so proceeds, it shall be without prejudice to further consideration of that issue after the tribunal has received the report.

(3) If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3).

(4) A tribunal may require any witness to give evidence on oath or affirmation and for that purpose there may be administered an oath or affirmation in due form.

Decision of tribunal

10.  (1)  Where a tribunal is composed of three members its decision may be taken by a majority; and if a tribunal is composed of two members only, the chairman shall have a second or casting vote.

(2) The decision of a tribunal, which may be given orally at the end of a hearing or reserved, shall be recorded in a document signed by the chairman.

(3) The tribunal shall give reasons for its decision in extended form in a document signed by the chairman; and where the tribunal—

(a)makes an award of compensation, or

(b)comes to any other determination by virtue of which one party is required to pay a sum to another (excluding an award of expenses or allowances),

the document shall also contain a statement of the amount of compensation awarded, or of the sum required to be paid, followed either by a table showing how the amount or sum has been calculated or by a description of the manner in which it has been calculated. [paragraph (4) is omitted because it has no relevance in proceedings involving an equal value claim]

(4A) There shall be appended to the document referred to in paragraph (3) a copy of the report (if any) of an expert received by the tribunal in the course of the proceedings.

(5) The clerk shall transmit the documents referred to in paragraphs (2) and (3) and the copy of the report referred to in paragraph (4A), if any, to the Secretary who shall enter them in the Register and shall send a copy of the entry to each of the parties and, where the proceedings were referred to the tribunal to a sheriff, to that sheriff.

(6) The document referred to in paragraph (3) and the copy of the report referred to in paragraph (4A), if any, shall be omitted from the Register in any case in which—

(a)a Minister of the Crown has directed the tribunal, in accordance with paragraph 1(4A) of Schedule 9 to the 1978 Act, to sit in private on grounds of national security, or

(b)evidence has been heard in private and the tribunal so directs.

  • In such a case the Secretary shall send that document to each of the parties; and where there are proceedings before an appellate court relating to the decision in question, he shall send the document to that court, together with a copy of the entry in the Register of the document referred to in paragraph (2).

(7) In any case appearing to involve allegations of a sexual offence, the document referred to in paragraph (3) shall be entered on the register with such deletions or amendments as have been made in accordance with rule 13(6).

(8) The Register shall be kept at the Office of the Tribunals and shall be open to the inspection of any person without charge at all reasonable hours.

(9) Clerical mistakes in the documents referred to in paragraphs (2) and (3), or errors arising in those documents from an accidental slip or omission, may at any time be corrected by the chairman by certificate under his hand.

(10) If a document is corrected by certificate under paragraph (9), or if a decision is—

(a)reviewed, revoked or varied by certificate under rule 11, or

(b)altered in any way by order of an appellate court,

the Secretary shall alter any entry in the Register which is affected to conform with the certificate or order and send a copy of any entry so altered to each of the parties and, where the proceedings were referred to the tribunal by a sheriff, to that sheriff.

(11) Where a document omitted from the Register pursuant to paragraph (6) is corrected by certificate under paragraph (9), the Secretary shall send a copy of the corrected document to each of the parties; and where there are proceedings before any appellate court relating to the decision in question, he shall send a copy to that court together with a copy of the entry in the Register of the document referred to in paragraph (2), if it has been altered under paragraph (10).

(12) Where this rule requires a document to be signed by the chairman of a tribunal composed of three or two persons, but by reason of death or incapacity the chairman is unable to sign it, the document shall be signed by the other members or member of the tribunal, who shall certify that the chairman is unable to sign.

Expenses

12.  (1)  Where, in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, the tribunal may make—

(a)an order containing an award against that party in respect of the expenses incurred by another party;

(b)an order that that party shall pay to the Secretary of State the whole, or any part, of any allowances (other than allowances paid to members of tribunals) paid by the Secretary of State under paragraph 10 of Schedule 9 to the 1978 Act to any person for the purposes of, or in connection with, his attendance at the tribunal.

(2) Paragraph (1) applies to a respondent who has not entered an appearance in relation to the conduct of any part in the proceedings which he has taken.

(2A) For the purposes of paragraph (1)(a), the expenses in respect of which a tribunal may make an order include expenses incurred by the party in whose favour the order is to be made in or in connection with the investigations carried out by the expert in preparing his report.

(3) An order containing an award against a party (“the first party”) in respect of the expenses incurred by another party (“the second party”) shall be—

(a)where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £500;

(b)where those parties agree on a sum to be paid by the first party to the second party in respect of those expenses, an order that the first party pay to the second party a specified sum, being the sum so agreed; or

(c)in any other case, an order that the first party pay to the second party the whole or a specified part of the expenses incurred by the second party as taxed (if not otherwise agreed).

(4) Where the tribunal has on the application of a party postponed the day or time fixed for or adjourned the hearing, the tribunal may make orders, of the kinds mentioned in paragraphs (1)(a) and (1)(b), against or, as the case may require, in favour of that party as respects any expenses incurred or any allowances paid as a result of the postponement or adjournment.

(5) A tribunal shall make orders against a respondent of the kinds mentioned in paragraphs (1) (a) and (1) (b) as respects any expenses or any allowances paid as a result of the postponement or adjournment of a hearing where, on a complaint of unfair dismissal—

(a)the applicant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent at least 7 days before the hearing of the complaint, or

(b)the proceedings arise out of the respondent’s failure to permit the applicant to return to work after an absence due to pregnancy or confinement,

and the postponement or adjournment has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the applicant was dismissed, or, as the case may be, which she held before her absence, or of comparable or suitable employment.

(6) Any expenses required by an order under this rule to be taxed may be taxed according to such part of the table of fees prescribed for proceedings in the sheriff court as shall be directed by the order, and thereafter the tribunal may issue an order for payment of the amount as taxed.

(7) Where—

(a)a party has been ordered under rule 7 to pay a deposit as a condition of being permitted to continue to participate in proceedings relating to a matter,

(b)in respect of that matter, the tribunal has found against that party in its decision, and

(c)there has been no award of expenses made against that party arising out of the proceedings on the matter,

the tribunal shall consider whether to award expenses against that party on the ground that he conducted the proceedings relating to the matter unreasonably in persisting in having the matter determined by a tribunal; but the tribunal shall not make an award of expenses on that ground unless it has considered the document recording the order under rule 7 and is of the opinion that the reasons which caused the tribunal to find against the party in its decision were substantially the same as the reasons recorded in that document for considering that the contentions of the party had no reasonable prospect of success.

(8) Where an award of expenses is made against a party who has had an order under rule 7 made against him (whether the award arises out of the proceedings relating to the matter in respect of which the order was made or out of proceedings relating to any other matter considered with that matter), his deposit shall be paid in part or full settlement of the award—

(a)where an award is made in favour of one party, to that party, and

(b)where awards are made in favour of more than one party, to all of them or any one or more of them as the tribunal thinks fit, and if to all or more than one, in such proportions as the tribunal considers appropriate,

and if the amount of the deposit exceeds the amount of the award of expenses, the balance shall be refunded to the party who paid it.

Miscellaneous powers

13.  (1)  Subject to the provisions of these rules, a tribunal may regulate its own procedure.

(2) A tribunal may—

(a)if the applicant at any time gives notice of the withdrawal of his originating application, dismiss the proceedings;

(b)if both or all the parties agree in writing upon the terms of a decision to be made by the tribunal, decide accordingly;

(c)consider representations in writing which have been submitted by a party to the Secretary(pursuant to rule 8(5)) less than 7 days before the hearing;

(d)subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, frivolous or vexatious;

(e)subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case maybe, respondent has been scandalous, frivolous or vexatious; and

(f)subject to paragraph (3), on the application of the respondent, or of its own motion, order an originating application to be struck out for excessive delay in proceeding with it.

(3) Before making an order under sub-paragraph (d), (e) or (f) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made.

(4) Where a notice required by paragraph (3) is sent in relation to an order to strike out an originating application for excessive delay in proceeding with it, service of the notice shall be treated as having been effected if it has been sent by post or delivered in accordance with rule 20(3)and the tribunal may strike out the originating application (notwithstanding that there has been no direction for substituted service in accordance with rule 20(6)) if the party does not avail himself of the opportunity given by the notice.

(5) A tribunal may, before determining an application under rule 4 or rule 17, require the party making the application or, in the case of an application under rule 4(2A), the expert, to give notice of it to every other party (or, in the case of an application by the expert, to the parties and any other person on whom the tribunal is asked, in the application, to impose a requirement).The notice shall give particulars of the application and indicate the address to which and the time within which any objection to the application shall be made, being an address and time specified for the purposes of the application by the tribunal.

(6) In any case appearing to involve allegations of the commission of a sexual offence, the tribunal or the Secretary shall omit from the Register, or delete from the Register or any decision, document or record of the proceedings, which is available to the public, any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation.

(6A) Without prejudice to paragraph (7), the tribunal shall, before proceeding to hear the parties on an equal value claim, invite them to apply for an adjournment for the purpose of seeking to reach a settlement of the claim and shall, if both or all the parties agree to such a course, grant an adjournment for that purpose.

(6B) If, after the tribunal has adjourned the hearing under rule 8A(4) but before the tribunal has received the report of the expert, the applicant gives notice under paragraph (2)(a), the tribunal shall notify the expert that the requirement to prepare a report has ceased. The notice shall be without prejudice to the operation of rule 12(2A).

(7) A chairman may postpone the day or time fixed for, or adjourn, any hearing (particularly where an enactment provides for conciliation in relation to the case, for the purpose of giving an opportunity for the case to be settled by way of conciliation and withdrawn) and vary any such postponement or adjournment.

(8) Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except—

(a)the hearing of an originating application under rule 8;

(b)an act required or authorised to be so done by rule 9 or 10 which the rule implies is to be done by the tribunal which is hearing or heard the originating application;

(c)the review of a decision under rule 11(1), and the confirmation, variation or revocation of a decision, and ordering of a re-hearing, under rule 11(6).

(9) Any act required or authorised by rules 3(4) and (5), 13(7) and 15 to be done by a chairman may be done by a tribunal or on the direction of a chairman.

(10) Any function of the Secretary may be performed by an Assistant Secretary or by a person acting with the authority of the Secretary or of an Assistant Secretary.

Notices, etc.

20.  (1)  Any notice given under these rules shall be in writing.

(2) All notices and documents required by these rules to be presented to the Secretary may be presented at the Office of the Tribunals or such other office as may be notified by the Secretary to the parties.

(3) All notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post (subject to paragraph (5)) or delivered to or at—

(a)in the case of a notice or document directed to the Secretary of State in proceedings to which he is not a party (or in respect of which he is treated as a party for the purposes of these rules by virtue of rule 8(6)), the offices of the Department of Employment (Redundancy and Insolvency Branch) at Caxton House, Tothill Street, London SW1H 9NF, or such other office as may be notified by the Secretary of State;

(b)in the case of a notice or document directed to a sheriff, the office of the sheriff clerk;

(c)in the case of a notice or document directed to a party—

(i)the address specified in his originating application or notice of appearance to which notices and documents are to be sent, or in a notice under paragraph (4), or

(ii)if no such address has been specified, or if a notice sent to such an address has been returned, to any other known address or place of business in the United Kingdom or, if the party is a corporate body, the body’s registered or principal office in the United Kingdom, or, in any case, such address or place outside the United Kingdom as the President or a Regional Chairman may allow;

(d)in the case of a notice or document directed to any person (other than a person specified in the foregoing provisions of this paragraph), his address or place of business in the United Kingdom or, if the person is a corporate body, the body’s registered or principal office in the United Kingdom;

and a notice or document sent or given to the authorised representative of a party shall be deemed to have been sent or given to that party.

(4) A party may at any time by notice to the Secretary and to the other party or parties (and, where appropriate, to the appropriate conciliation officer) change the address to which notices and documents are to be sent.

(5) The recorded delivery service shall be used instead of the ordinary post—

(a)when a second set of notices or documents is sent to a respondent who has not entered an appearance under rule 3(1); and

(b)for service of an order made under rule 4(2) or (2A).

(6) The President or a Regional Chairman may direct that there shall be substituted service in such manner as he may deem fit in any case he considers appropriate.

(7) In proceedings brought under the provisions of any enactment providing for conciliation the Secretary shall send copies of all documents and notices to a conciliation officer who in the opinion of the Secretary is an appropriate officer to receive them.

(8) In proceedings which may involve a payment out of the National Insurance Fund, the Secretary shall, where appropriate, send copies of all documents and notices to the Secretary of State whether or not he is a party.

(9) In proceedings under the 1970 Act, the 1975 Act or the 1986 Act, or the 1976 Act, the Secretary shall send to the Equal Opportunities Commission or, as the case may be, the Commission for Racial Equality copies of every document and copy entry sent to the parties under rules 10(5) and 10(10).

[Regulation 8(4)]

SCHEDULE 3RULES OF PROCEDURE APPLICABLE TO APPEALS UNDER LEVY ORDERS

Notice of appeal

1.  An appeal against an assessment to a levy shall be instituted by the appellant sending to the Board in duplicate a notice of appeal which shall be substantially in accordance with Form 1, and shall set out the grounds of the appeal.

Action upon receipt of appeal

2.  (1)  Subject to the provisions of rules 3 and 4, the Board upon receiving the notice of appeal shall send within 21 days to the Secretary—

(a)one copy of the notice of appeal;

(b)a copy of the assessment notice and of any notice by the Board allowing further time for appealing;

(c)a notice giving the Board’s address for service under these rules where that address is different from the address specified in the assessment notice as the address for service of a notice of appeal; and

(d)any representations in writing relating to the appeal that the Board may then desire to submit to the tribunal.

(2) Failure to comply with any provision of this rule or rule 3 shall not render the appeal or anything done in pursuance thereof invalid.

Further particulars of appeal

3.  (1)  Subject to rule 4, this rule applies in a case where the Board upon receiving the notice of appeal requires further particulars of the grounds on which the appellant intends to rely and of any facts and contentions relevant thereto.

(2) The Board shall within 21 days of receiving the notice of appeal send to the appellant a notice specifying the further particulars required by the Board.

(3) The appellant shall within 21 days of receiving the said notice, or within such further period as the Board may allow, send to the Board in duplicate such further particulars.

(4) Subject to the provisions of paragraph (5), the Board shall, within 21 days of receiving such further particulars, send to the Secretary—

(a)the documents specified in rule 2;

(b)a copy of the notice requiring the further particulars; and

(c)such further particulars, and any representations in writing with respect thereto that the Board may then desire to submit to the tribunal.

(5) If such further particulars are not received by the Board in due time, the documents mentioned in sub-paragraphs (a) and (b) of paragraph (4) shall be sent by the Board to the Secretary not later than—

(a)the fiftieth day after the receipt of the notice of appeal by the Board; or

(b)if the Board has allowed a further period of time for delivery of further particulars under paragraph (3), the seventh day after the expiration of that period.

Withdrawal of appeal or assessment

4.  (1)  The appellant may withdraw the notice of appeal by notice given to the Board at any time before the entry of the appeal in the Register under rule 5 (a) and in that event no further action shall be taken in relation to the appeal.

(2) Where an assessment is withdrawn by the Board, no further action shall be taken in relation to the appeal.

Entry of appeal

5.  Upon receiving from the Board the relevant documents in accordance with rule 2(1), 3(4) or 3(5) the Secretary shall as soon as practicable—

(a)enter particulars of the appeal in the Register;

(b)give notice to the appellant and to the Board of the case number of the appeal entered in the Register (which shall thereafter constitute the title of the appeal) and of the address to which notices and other communications to the Secretary shall be sent;

(c)give notice to the appellant of the Board’s address for service under these rules; and

(d)send to the appellant a copy of any representations in writing that the Board has submitted to the tribunal under rule 2 or rule 3.

Directions for further particulars

6.  (1)  In any case in which an appellant has not sent to the Board further particulars in accordance with a notice sent by the Board under rule 3 the tribunal may, on the application of the Board (which may be sent to the Secretary with the documents referred to in rule 3(5)), by notice direct the appellant to supply such further particulars of the grounds on which he intends to rely and of any facts and contentions relevant thereto as may be specified in the notice, and the appellant shall send such particulars in duplicate to the Secretary within such time as the tribunal shall direct.

(2) Upon receipt of further particulars from the appellant the Secretary shall send a copy thereof to the Board.

(3) If the appellant makes default in complying with a direction made by the tribunal under this rule the tribunal may on the application of the Board dismiss the appeal or give such other directions as may seem proper.

(4) The tribunal may at any time by notice direct the Board to furnish any particulars relating to the assessment which appear to be requisite for the decision of the appeal, and thereupon the Board shall send the particulars to the Secretary and to the appellant.

Attendance of witnesses and recovery of documents

7.  (1)  On the application of the appellant or the Board made either by notice to the Secretary or at the hearing the tribunal may—

(a)require one party to grant to another such recovery or inspection (including the taking of copies) of documents as might be ordered by a sheriff; or

(b)require any person (including a party) to attend as a witness and to give evidence or to produce any documents in his possession or power which relate to the appeal;

and may appoint the time at or within which or the place at which any act required in pursuance of this rule is to be done.

(2) A party on whom a requirement has been imposed under paragraph (1) (a) of this rule or a person on whom a requirement has been imposed under paragraph (1) (b) may, if such requirement was made upon an ex parte application, apply to the tribunal to vary or set aside the requirement, and notice of such an application shall be given to the party upon whose application the requirement was made.

(3) No application to vary or set aside a requirement as aforesaid shall be entertained by the tribunal in a case where a time has been appointed in relation to the requirement unless the application is made before the time or, as the case may be, the expiration of the time so appointed.

(4) Every document containing a requirement under paragraph (1) shall contain a reference to the fact that, under paragraph 1(7) of Schedule 9 to the 1978 Act, any person who without reasonable excuse fails to comply with any such requirement shall be liable on summary conviction to a fine, and the document shall state the amount of the current maximum fine.

Time and place of hearing of appeal

8.  The President or a Regional Chairman shall fix the date, time and place of the hearing of an appeal, and the Secretary shall, not less than 14 days before the date so fixed, send to the appellant and to the Board a notice substantially in accordance with Form 2.

The hearing

9.  (1)  Any hearing of an appeal shall be heard by a tribunal composed in accordance with section 128(2A), (2B) and (2C), or section 128(6), of the 1978 Act.

(2) Any hearing of or in connection with an appeal shall take place in public except where a Minister of the Crown has directed a tribunal to sit in private on grounds of national security in accordance with paragraph 1(4A) of Schedule 9 to the 1978 Act.

(3) Notwithstanding paragraph (2), a tribunal may sit in private for the purpose of—

(a)hearing evidence which in the opinion of the tribunal relates to matters of such a nature that it would be against the interests of national security to allow the evidence to be given in public; or

(b)hearing evidence from any person which in the opinion of the tribunal is likely to consist of—

(i)information which he could not disclose without contravening a prohibition imposed by or under any enactment, or

(ii)any information which has been communicated to him in confidence, or which he has otherwise obtained in consequence of the confidence reposed in him by another person, or

(iii)information the disclosure of which would cause substantial injury to any undertaking of his or any undertaking in which he works for reasons other than its effect on negotiations with respect to any of the matters mentioned in section 244(1) of the 1992 Act.

(4) A member of the Council on Tribunals or of its Scottish Committee shall be entitled to attend any hearing taking place in private in his capacity as such a member.

Procedure at hearing

10.  (1)  At the hearing of an appeal the appellant and the Board shall be entitled to make opening statements, to call witnesses, to cross-examine any witnesses called by the other party and to address the tribunal.

(2) The appellant may if he so desires give evidence on his own behalf.

(3) If the appellant or the Board or both of them shall fail to appear or to be represented at the time and place fixed for a hearing the tribunal may dispose of the appeal or application in the absence of such party or parties or may adjourn the hearing to a later date: provided that before disposing of an appeal in the absence of either or both parties the tribunal shall consider any representations submitted by such party or parties under these rules.

(4) The tribunal may require any witnesses to give evidence on oath or affirmation in due form.

Decision of tribunal

11.  (1)  Where a tribunal is composed of three members its decision may be taken by a majority; and if a tribunal is composed of two members only, the chairman shall have a second or casting vote.

(2) The decision of a tribunal shall be recorded in a document signed by the chairman which shall contain the reasons for the decision.

(3) The clerk shall transmit the document signed by the chairman to the Secretary who shall enter it in the Register, and shall send a copy of the entry to the appellant and the Board.

(4) The specification of the reasons for the decision shall be omitted from the Register in any case in which—

(a)a Minister of the Crown has directed the tribunal, in accordance with paragraph 1(4A) of Schedule 9 to the 1978 Act, to sit in private on grounds of national security,

(b)evidence has been heard in private and the tribunal so directs, or

(c)the tribunal on the application of the appellant so directs on the ground that disclosure will be contrary to the interests of the appellant.

and in that event a specification of the reasons shall be sent to the appellant and the Board, and to any appellate court in any proceedings relating to the decision, together with the copy of the entry.

(5) The chairman of the tribunal shall have power by certificate under his hand to correct in documents recording the tribunal’s decisions clerical mistakes or errors arising therein from any accidental slip or omission.

(6) The clerk shall send a copy of any documents so corrected and the certificate of the chairman to the Secretary who shall thereupon make such correction as may be necessary in the Register and shall send a copy of the corrected entry or the corrected specification of the reasons, as the case may be, to the appellant and the Board.

Expenses

12.  (1)  The decision of the tribunal may include—

(a)an order that the Board shall pay to the appellant or that the appellant shall pay to the Board either a specified sum in respect of the expenses incurred by the appellant or the Board, as the case may be, or, in default of agreement, the taxed amount of those expenses;

(b)an order that the Board or the appellant shall pay to the Secretary of State the whole, or any part of, any allowances (other than allowances paid to members of tribunals) paid by the Secretary of State under paragraph 10 of Schedule 9 to the 1978 Act to any person, for the purposes of, or in connection with, his attendance at the tribunal.

(2) Any expenses required by an order under this rule to be taxed may be taxed according to such part of the table of fees prescribed for proceedings in the sheriff court as shall be directed by the order, and thereafter the tribunal may issue an order for payment of the amount as taxed.

Miscellaneous powers

13.  (1)  The tribunal may if it thinks fit—

(a)extend the time appointed by these rules for doing any act notwithstanding that the time appointed may have expired;

(b)before granting an application referred to in rule 6(1), 6(3), 7(1) or 14, require the party making the application to give notice thereof to the other party;

(c)postpone the day or time fixed for, or adjourn the hearing of, any appeal or application;

(d)if at any time after the entry of the appeal in the Register the appellant gives notice of the abandonment of his appeal to the Secretary and to the Board, or the Board gives notice that the appeal is not contested to the Secretary and to the appellant, dismiss or allow the appeal, as the case may be, and thereupon rule 12 shall apply;

(e)if the appellant and the Board agree in writing upon the terms of a decision to be made by the tribunal, decide accordingly.

(2) A notice under paragraph (1) (b) shall give particulars of the application and indicate the address to which and the time within which any objection to the application shall be made, being an address and time specified by the tribunal for the purposes of the application.

(3) Subject to the provisions of these rules the tribunal may regulate its own procedure.

(4) Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except—

(a)the hearing of an appeal under rule 9; and

(b)an act required or authorised to be so done by rule 10 or 11 which the rule implies is to be done by the tribunal which is hearing or heard the appeal.

(5) Any functions of the Secretary other than those mentioned in rules 5 and 11 may be performed by an Assistant Secretary.

Applications

14.  (1)  An application to the tribunal for an extension of the time appointed by these rules for doing any act may be made by the appellant or the Board either before or (subject to rule 7(3)) after the expiration of the time so appointed.

(2) The appellant or the Board may at any time apply to the tribunal for directions on any matter arising in connection with an appeal.

(3) An application made under the foregoing provisions of these rules or to the tribunal for an extension of the time for appealing against an assessment to a levy shall be made by sending to the Secretary in duplicate a notice of application which shall state the time of the appeal, or the number of the assessment in the case where an appeal has not been entered in the Register, and shall set out the grounds of the application.

(4) The Secretary shall give notice to the appellant and to the Board of any extension of time granted by the tribunal or of any directions given by the tribunal in pursuance of these rules.

Notices, etc.

15.  (1)  Any notice given under these rules shall be in writing, and all notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post by means of the recorded delivery service or delivered to or at—

(a)in the case of a notice of appeal, the Board’s address for service specified in the assessment notice;

(b)in the case of any other document directed to the Board, the Board’s address for service;

(c)in the case of a document (other than a notice of appeal) directed to the Secretary, the Office of the Tribunals or such other office as may be notified by the Secretary to the appellant and to the Board under rule 5 (b) or paragraph (3);

(d)in the case of a document directed to the appellant, his address for service specified in a notice given under these rules or, failing such a notice or if a notice sent to such an address has been returned, his last known address or place of business in the United Kingdom, or if the appellant is a corporation, such address or place of business or its registered or principal office;

and if sent or given to the authorised representative of the appellant or the Board shall be deemed to have been sent or given to the appellant or the Board as the case may be.

(2) The appellant or the Board may at any time by notice to the Secretary and to the other party change his address for service under these rules.

(3) The Secretary shall give notice to the appellant and the Board of any change in an address of which notice has been given to the parties under rule 5(b).

APPENDIX

FORM 1INDUSTRIAL TRAINING ACT 1982NOTICE OF APPEAL AGAINST AN ASSESSMENT

FORM 2INDUSTRIAL TRAINING ACT 1982NOTICE OF HEARING

[Regulation 8(4)]

SCHEDULE 4RULES OF PROCEDURE APPLICABLE TO APPEALS AGAINST IMPROVEMENT AND PROHIBITION NOTICES

Notice of Appeal

1.  An appeal shall be commenced by the appellant sending to the Secretary a notice of appeal which shall be in writing and shall set out—

(a)the name and address of the appellant and, if different, an address within the United Kingdom to which he requires notices and documents relating to the appeal to be sent;

(b)the date of the improvement notice or prohibition notice appealed against and the address of the premises or place concerned;

(c)the name and address of the respondent;

(d)particulars of the requirements or directions appealed against; and

(e)the grounds of the appeal.

Time limit for bringing appeal

2.  (1)  Subject to paragraph (2), the notice of appeal shall be sent to the Secretary within 21 days from the date of the service on the appellant of the notice appealed against.

(2) A tribunal may extend the time mentioned above where it is satisfied, on an application made in writing to the Secretary either before or after the expiration of that time, that it is not or was not reasonably practicable for an appeal to be brought within that time.

Action upon receipt of notice of appeal

3.  Upon receiving a notice of appeal the Secretary shall enter particulars of it in the Register and shall send a copy of it to the respondent and inform the parties in writing of the case number of the appeal entered in the Register (which shall thereafter constitute the title of the proceedings) and of the address to which notices and other communications to the Secretary shall be sent.

Application for direction suspending the operation of a prohibition notice

4.  (1)  Where an appeal has been brought against a prohibition notice and an application is made to the tribunal by the appellant in pursuance of section 24(3) (b) of the 1974 Act for a direction suspending the operation of the notice until the appeal is finally disposed of or withdrawn, the application shall be sent in writing to the Secretary and shall set out—

(a)the case number of the appeal if known to the appellant or particulars sufficient to identify the appeal; and

(b)the grounds on which the application is made.

(2) Upon receiving the application, the Secretary shall enter particulars of it against the entry in the Register relating to the appeal and shall send a copy of it to the respondent.

Power to require attendance of witnesses and production of documents, etc.

5.  (1)  A tribunal may on the application of a party made either by notice to the Secretary or at the hearing—

(a)require a party to furnish in writing to another party further particulars of the grounds on which he relies and of any facts and contentions relevant thereto;

(b)require one party, to grant to another such recovery or inspection (including the taking of copies) of documents as might be ordered by a sheriff; and

(c)require the attendance of any person as a witness or require the production of any document relating to the matter to be determined,

and may appoint the time at or within which or the place at which any act required in pursuance of this rule is to be done.

(2) The tribunal shall not under paragraph (1) require the production of any document certified by the Secretary of State as being a document of which the production would be against the interests of national security.

(3) A person on whom a requirement has been made under paragraph (1) may apply to the tribunal either by notice to the Secretary or at the hearing to vary or set aside the requirement.

(4) No such application to vary or set aside shall be entertained in a case where a time has been appointed under paragraph (1) in relation to the requirement unless it is made before the time or, as the case may be, expiration of the time so appointed.

(5) Every document containing a requirement under paragraph (1) (b) or (c) shall contain a reference to the fact that under paragraph 1(7) of Schedule 9 to the 1978 Act any person who without reasonable excuse fails to comply with any such requirement shall be liable on summary conviction to a fine, and the document shall state the amount of the current maximum fine.

Time and place of hearing and appointment of assessor

6.  (1)  The President or a Regional Chairman shall fix the date, time and place of the hearing of the appeal and the Secretary shall not less than 14 days (or such shorter time as may be agreed by him with the parties) before the date so fixed send to each party a notice of hearing together with information and guidance as to attendance at the hearing, witnesses and the bringing of documents (if any), representation by another person and written representations.

(2) Where the President or a Regional Chairman so directs, the Secretary shall also send notice of the hearing to such persons as may be directed, but the requirement as to the period of notice contained in paragraph (1) shall not apply to any such notice.(3) The President or a Regional Chairman may, if he thinks fit, appoint in pursuance of section 24(4) of the 1974 Act a person or persons having special knowledge or experience in relation to the subject matter of the appeal to sit with the tribunal as assessor or assessors.

The hearing

7.  (1)  Any hearing of an appeal shall be heard by a tribunal composed in accordance with section 128(2A), (2B) and (2C), or section 128(6), of the 1978 Act.

(2) Any hearing of or in connection with an appeal shall take place in public except where a Minister of the Crown has directed a tribunal to sit in private on grounds of national security in accordance with paragraph 1(4A) of Schedule 9 to the 1978 Act.

(3) Notwithstanding paragraph (2), a tribunal may sit in private, if on the application of a party the tribunal considers it appropriate to do so, for the purpose of hearing evidence—

(a)which relates to matters of such a nature that it would be against the interests of national security to allow the evidence to be given in public, or

(b)hearing evidence from any person which in the opinion of the tribunal is likely to consist of information the disclosure of which would cause substantial injury to the undertaking of the appellant or of any undertaking in which he works for reasons other than its effect on negotiations with respect to any of the matters mentioned in section 244(1) of the 1992 Act.

(4) A member of the Council on Tribunals or of its Scottish Committee shall be entitled to attend any hearing in his capacity as such a member.

Written representations

8.  If a party wishes to submit representations in writing for consideration by a tribunal at the hearing of the appeal, that party shall present his representations to the Secretary not less than 7 days before the hearing and shall at the same time send a copy of it to the other party.

Procedure at hearing

9.  (1)  At any hearing of or in connection with an appeal a party shall be entitled to make an opening statement, to give evidence on his own behalf, to call witnesses, to cross-examine any witnesses called by the other party and to address the tribunal.

(2) If a party shall fail to appear or to be represented at the time and place fixed for the hearing of an appeal, the tribunal may dispose of the appeal in the absence of that party or may adjourn the hearing to a later date: provided that before disposing of an appeal in the absence of a party the tribunal shall consider any written representations submitted by that party in pursuance of rule 8.

(3) A tribunal may require any witness to give evidence on oath or affirmation and for that purpose there may be administered an oath or affirmation in due form.

Decision of tribunal

10.  (1)  Where a tribunal is composed of three members its decision may be taken by a majority; and if a tribunal is composed of two members only, the chairman shall have a second or casting vote.

(2) The decision of a tribunal shall be recorded in a document signed by the chairman which shall contain the reasons for the decision.

(3) The clerk shall transmit the document signed by the chairman to the Secretary who shall enter it in the Register and shall send a copy of the entry to each of the parties.

(4) The specification of the reasons for the decision shall be omitted from the Register in any case in which—

(a)a Minister of the Crown has directed the tribunal, in accordance with paragraph 1(4A) of Schedule 9 to the 1978 Act, to sit in private on grounds of national security, or

(b)evidence has been heard in private and the tribunal so directs,

and in that event a specification of the reasons shall be sent to the parties and to any appellate court in any proceedings relating to such decision together with the copy of the entry.

(5) The chairman of a tribunal shall have power by certificate under his hand to correct in documents recording the tribunal’s decisions clerical mistakes or errors arising therein from any accidental slip or omission.

(6) The clerk shall send a copy of any document so corrected and the certificate of the chairman to the Secretary who shall as soon as practicable make such correction as may be necessary in the Register and shall send a copy of the corrected entry or of the corrected specification of the reasons, as the case may be, to each of the parties.

(7) If any decision is—

(a)corrected under paragraph (5),

(b)reviewed, revoked or varied under rule 11, or

(c)altered in any way by order of an appellate court,

the Secretary shall alter the entry in the Register to conform with any such certificate or order and shall send a copy of the new entry to each of the parties.

Review of tribunal’s decision

11.  (1)  A tribunal shall have power on the application of a party to review and revoke or vary by certificate under the chairman’s hand any of its decisions on the grounds that—

(a)the decision was wrongly made as a result of an error on the part of the tribunal staff;

(b)a party did not receive notice of the proceedings leading to the decision;

(c)the decision was made in the absence of a party;

(d)new evidence has become available since the making of the decision provided that its existence could not have been reasonably known of or foreseen; or

(e)the interests of justice require such a review.

(2) An application for the purposes of paragraph (1) may be made at the hearing. If the application is not made at the hearing, such application shall be made to the Secretary within 14 days from the date of the entry of a decision in the Register and must be in writing stating the grounds in full.

(3) An application for the purposes of paragraph (1) may be refused by the chairman of the tribunal which decided the case, by the President or by a Regional Chairman if in his opinion it has no reasonable prospect of success and he shall state the reasons for his opinion.

(4) If such an application is not refused under paragraph (3), it shall be heard by the tribunal and if it is granted the tribunal shall either vary its decision or revoke its decision and order a re-hearing.

(5) The clerk shall send to the Secretary the certificate of the chairman as to any revocation or variation of the tribunal’s decision under this rule. The Secretary shall as soon as practicable make such correction as may be necessary in the Register and shall send a copy of the entry to each of the parties.

Expenses

12.  (1)  A tribunal may make an order that a party shall pay to another party either a specified sum in respect of the expenses of or in connection with an appeal incurred by that other party or, in default of agreement, the taxed amount of those expenses.

(2) Any expenses required by an order under this rule to be taxed may be taxed according to such part of the table of fees prescribed for proceedings in the sheriff court as shall be directed by the order, and thereafter the tribunal may issue an order for payment of the amount as taxed.

Miscellaneous powers

13.  (1)  Subject to the provisions of these rules, a tribunal may regulate its own procedure.

(2) A tribunal may, if it thinks fit—

(a)postpone the day or time fixed for, or adjourn, any hearing;

(b)before granting an application under rule 5 or 11 require the party making the application to give notice thereof to the other party;

(c)either on the application of any person or of its own motion, direct any other person to be sisted as a party to the appeal (giving such consequential directions as it considers necessary), but may do so only after having given to the person proposed to be sisted a reasonable opportunity of making written or oral objection;

(d)make any necessary amendments to the description of a party in the Register and in other documents relating to the appeal;

(e)if the appellant shall at any time give notice of the abandonment of his appeal, dismiss the appeal;

(f)if the parties agree in writing upon the terms of a decision to be made by the tribunal, decide accordingly.

(3) Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except—

(a)the hearing of an appeal under rule 8;

(b)an act required or authorised to be so done by rule 9 or 10 which the rule implies is to be done by the tribunal which is hearing or heard the appeal;

(c)the hearing of an application under rule 11(1), and the variation or revocation of a decision, and ordering of a re-hearing, under rule 11(4);

(d)the granting of an extension of time under rule 2(2).

(4) Any functions of the Secretary may be performed by an Assistant Secretary.

Notices, etc.

14.  (1)  Any notice given under these rules shall be in writing and all notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post (subject to paragraphs (3) and (4)) or delivered to or at—

(a)in the case of a document directed to the Secretary, the Office of the Tribunals or such other office as may be notified by the Secretary to the parties;

(b)in the case of a document directed to a party, his address for service specified in the notice of appeal or in a notice under paragraph (2) or (if no address for service is so specified or if a notice sent to such an address has been returned), his last known address or place of business in the United Kingdom or, if the party is a corporation, the corporation’s registered or principal office;

(c)in the case of a document directed to any person (other than a person specified in the foregoing provisions of this paragraph), his address or place of business in the United Kingdom, or if such a person is a corporation, the corporation’s registered or principal office;

and if sent or given to the authorised representative of a party shall be deemed to have been sent or given to that party.

(2) A party may at any time by notice to the Secretary and to the other party change his address for service under these rules.

(3) Where a notice of appeal is not delivered, it shall be sent by the recorded delivery service.

(4) Where for any sufficient reason service of any document or notice cannot be effected in the manner prescribed under this rule, the President or a Regional Chairman may make an order for substituted service in such manner as he may deem fit and such service shall have the same effect as service in the manner prescribed under this rule.

(5) In the case of an appeal to which the respondent is an inspector appointed otherwise than by the Health and Safety Executive, the Secretary shall send to that executive copies of the notice of appeal and the document recording the decision of the tribunal on the appeal.

[Regulation 8(4)]

SCHEDULE 5RULES OF PROCEDUREAPPLICABLE TO APPEALS AGAINST NON-DISCRIMINATION NOTICES

Notice of appeal

1.  An appeal shall be commenced not later than six weeks after service of the non-discrimination notice, as specified in section 68(1) of the 1975 Act and in section 59(1) of the 1976 Act, by the appellant sending to the Secretary a notice of appeal which shall be in writing and shall set out—

(a)the name and address of the appellant and, if different, an address within the United Kingdom to which he requires notices and documents relating to the appeal to be sent;

(b)the date of the non-discrimination notice appealed against;

(c)the name and address of the respondent;

(d)particulars of the requirements appealed against; and

(e)the grounds of the appeal.

Action upon receipt of notice of appeal

2.  Upon receiving a notice of appeal the Secretary shall, subject to rule 11(3), enter particulars of it in the Register and shall send a copy of it to the respondent and inform the parties in writing of the case number of the appeal entered in the Register (which shall thereafter constitute the title of the proceedings) and of the address to which notices and other communications to the Secretary shall be sent.

Power to require attendance of witnesses and production of documents, etc.

3.  (1)  A tribunal may on the application of a party made either by notice to the Secretary or at the hearing—

(a)require a party to furnish in writing to another party further particulars of the grounds on which he relies and of any facts and contentions relevant thereto;

(b)require one party to grant to another such recovery or inspection (including the taking of copies) of documents as might be ordered by a sheriff; and

(c)require the attendance of any person as a witness or require the production of any document relating to the matter to be determined,

and may appoint the time at or within which or the place at which any act required in pursuance of this rule is to be done.

(2) The tribunal shall not under paragraph (1) require the production of any document certified by the Secretary of State as being a document of which the production would be against the interests of national security.

(3) A person on whom a requirement has been made under paragraph (1) may apply to the tribunal either by notice to the Secretary or at the hearing to vary or set aside the requirement.

(4) No such application to vary or set aside shall be entertained in a case where a time has been appointed under paragraph (1) in relation to the requirement unless it is made before the time or, as the case may be, expiration of the time so appointed.

(5) Every document containing a requirement under paragraph (1) (b) or (c) shall contain a reference to the fact that, under paragraph 1(7) of Schedule 9 to the 1978 Act, any person who without reasonable excuse fails to comply with any such requirement shall be liable on summary conviction to a fine, and the document shall state the amount of the current maximum fine.

Time and place of hearing

4.  (1)  The President or a Regional Chairman shall fix the date, time and place of the hearing of the appeal and the Secretary shall not less than 14 days (or such shorter time as may be agreed by him with the parties) before the date so fixed send to each party a notice of hearing together with information and guidance as to attendance at the hearing, witnesses and the bringing of documents (if any), representation by another person and written representations.

(2) Where the President or a Regional Chairman so directs, the Secretary shall also send notice of the hearing to such persons as may be directed, but the requirements as to the period of notice contained in paragraph (1) shall not apply to any such notices.

The hearing

5.  (1)  Any hearing of an appeal shall be heard by a tribunal composed in accordance with section 128(2A), (2B) and (2C), or section 128(6), of the 1978 Act.

(2) Any hearing of or in connection with an appeal shall take place in public except where a Minister of the Crown has directed a tribunal to sit in private on grounds of national security in accordance with paragraph 1(4A) of Schedule 9 to the 1978 Act.

(3) Notwithstanding paragraph (2), a tribunal may sit in private, if on the application of a party the tribunal considers it appropriate to do so, for the purpose of hearing evidence—

(a)which relates to matters of such a nature that it would be against the interests of national security to allow the evidence to be given in public, or

(b)hearing evidence from any person which in the opinion of the tribunal is likely to consist of information the disclosure of which would cause substantial injury to the undertaking of the appellant or of any undertaking in which he works for reasons other than its effect on negotiations with respect to any of the matters mentioned in section 244(1) of the 1992 Act.

(4) A member of the Council on Tribunals or of its Scottish Committee shall be entitled to attend any hearing in his capacity as such a member.

Written representations

6.  If a party wishes to submit representations in writing for consideration by a tribunal at the hearing of the appeal, that party shall send such representations to the Secretary not less than 7 days before the hearing and shall at the same time send a copy thereof to the other party.

Procedure at hearing

7.  (1)  At any hearing of or in connection with an appeal a party shall be entitled to make an opening statement, to give evidence, to call witnesses, to cross-examine any witnesses called by the other party and to address the tribunal.

(2) If a party shall fail to appear or to be represented at the time and place fixed for the hearing of an appeal, the tribunal may dispose of the appeal in the absence of that party or may adjourn the hearing to a later date: provided that before disposing of an appeal in the absence of a party the tribunal shall consider any written representations submitted by that party in pursuance of rule 6.

(3) A tribunal may require any witness to give evidence on oath or affirmation and for that purpose there may be administered an oath or affirmation in due form.

Decision of tribunal

8.  (1)  Where a tribunal is composed of three members its decision may be taken by a majority; and if a tribunal is composed of two members only, the chairman shall have a second or casting vote.

(2) The decision of a tribunal shall be recorded in a document signed by the chairman which shall contain the reasons for the decision.

(3) The clerk shall transmit the document signed by the chairman to the Secretary who shall enter it in the Register and shall send a copy of the entry to each of the parties.

(4) The specification of the reasons for the decision shall be omitted from the Register in any case in which—

(a)a Minister of the Crown has directed the tribunal, in accordance with paragraph 1(4A) of Schedule 9 to the 1978 Act, to sit in private on grounds of national security, or

(b)evidence has been heard in private and the tribunal so directs,

and in that event a specification of the reasons shall be sent to the parties and to any appellate court in any proceedings relating to such decision together with the copy of the entry.

(5) In any appeal appearing to involve allegations of a sexual offence, the document referred to in paragraph (3) shall be entered on the register with such deletions or amendments as have been made in accordance with rule 11(3).

(6) The chairman shall have power by certificate under his hand to correct in documents recording the tribunal’s decisions clerical mistakes or errors arising therein from any accidental slip or omission.

(7) The clerk shall send a copy of any document so corrected and the certificate of the chairman to the Secretary who shall as soon as practicable make such corrections as may be necessary in the Register and shall send a copy of the corrected entry or of the corrected specification of the reasons, as the case may be, to each of the parties.

(8) If any decision is—

(a)corrected under paragraph (6),

(b)reviewed, revoked or varied under rule 9, or

(c)altered in any way by order of an appellate court,

the Secretary shall alter the entry in the Register to conform with any such certificate or order and shall send a copy of the new entry to each of the parties.

Review of tribunal’s decision

9.  (1)  A tribunal shall have power on the application of a party to review and to revoke or vary by certificate under the chairman’s hand any of its decisions on the grounds that—

(a)the decision was wrongly made as a result of an error on the part of the tribunal staff;

(b)a party did not receive notice of the proceedings leading to the decision;

(c)the decision was made in the absence of a party;

(d)new evidence has become available since the making of the decision provided that its existence could not have been reasonably known of or foreseen; or

(e)the interests of justice require such a review.

(2) An application for the purposes of paragraph (1) may be made at the hearing. If the application is not made at the hearing, such application shall be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full.

(3) An application for the purposes of paragraph (1) may be refused by the chairman of the tribunal which decided the case, by the President or by a Regional Chairman if in his opinion it has no reasonable prospect of success and he shall state the reasons for his opinion.

(4) If such an application is not refused under paragraph (3), it shall be heard by the tribunal and if it is granted the tribunal shall either vary its decision or revoke its decision and order a re-hearing.

(5) The clerk shall send to the Secretary the certificate of the chairman as to any revocation or variation of the tribunal’s decision under this rule. The Secretary shall as soon as practicable make such correction as may be necessary in the Register and shall send a copy of the entry to each of the parties.

Expenses

10.  (1)  A tribunal may make an order that a party shall pay to another party either a specified sum in respect of the expenses of or in connection with an appeal incurred by that other party or, in default of agreement, the taxed amount of those expenses.

(2) Any expenses required by an order under this rule to be taxed may be taxed according to such part of the table of fees prescribed for proceedings in the sheriff court as shall be directed by the order, and thereafter the tribunal may issue an order for payment of the amount as taxed.

Miscellaneous powers

11.  (1)  Subject to the provisions of these rules, a tribunal may regulate its own procedure.

(2) A tribunal may—

(a)postpone the day or time fixed for, or adjourn, any hearing;

(b)before granting an application under rule 3 or 9 require the party making the application to give notice thereof to the other party;

(c)either on the application of any person or of its own motion, direct any other person to be sisted as a party to the appeal (giving such consequential directions as it considers necessary), but may do so only after having given to the person proposed to be sisted a reasonable opportunity of making written or oral objection;

(d)make any necessary amendments to the description of a party in the Register and in other documents relating to the appeal;

(e)if the appellant shall at any time give notice of the abandonment of his appeal, dismiss the appeal;

(f)if the parties agree in writing upon the terms of a decision to be made by the tribunal, decide accordingly.

(3) In any appeal appearing to involve allegations of the commission of a sexual offence, the tribunal or the Secretary shall omit from the Register, or delete from the Register or any decision, document or record of the proceedings, which is available to the public, any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation.

(4) Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except—

(a)the hearing of an appeal under rule 5;

(b)an act required or authorised to be so done by rule 7 or 8 which the rule implies is to be done by the tribunal which is hearing or has heard the appeal;

(c)the hearing of an application under rule 9(1), and the variation or revocation of a decision, and ordering of a re-hearing, under rule 9(4).

(5) Any functions of the Secretary may be performed by an Assistant Secretary.

Restricted reporting orders

12.  (1)  In any appeal which involves allegations of sexual misconduct the tribunal may at any time before promulgation of its decision, either on the application of a party made by notice to the Secretary or of its own motion, make a restricted reporting order.

(2) The tribunal shall not make a restricted reporting order unless it has given each party an opportunity to advance oral argument at a hearing, if they so wish.

(3) Where a tribunal makes a restricted reporting order—

(a)it shall specify in the order the persons who may not be identified;

(b)the order shall remain in force until the promulgation of the decision of the tribunal on the appeal to which it relates unless revoked earlier; and

(c)the Assistant Secretary shall ensure that a notice of that fact is displayed on the notice board of the tribunal with any list of the proceedings taking place before the industrial tribunal, and on the door of the room in which the proceedings affected by the order are taking place.

(4) A tribunal may revoke a restricted reporting order at any time if it thinks fit.

(5) For the purposes of this rule “promulgation”occurs on the date recorded as being the date on which the document recording the determination of the appeal was sent to the parties.

Notices, etc.

13.  (1)  Any notice given under these rules shall be in writing and all notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post (subject to paragraphs (3) and (4)) or delivered to or at—

(a)in the case of a document directed to the Secretary, the Office of the Tribunals or such other office as may be notified by the Secretary to the parties;

(b)in the case of a document directed to a party, his address for service specified in the notice of appeal or in a notice under paragraph (2) or (if no address for service is so specified or if a notice sent to such an address has been returned), his last known address or place of business in the United Kingdom, or if the party is a corporation, the corporation’s registered or principal office;

(c)in the case of a document directed to any person (other than a person specified in the foregoing provisions of this paragraph), his address or place of business in the United Kingdom, or if such a person is a corporation, the corporation’s registered or principal office;

and if sent or given to the authorised representative of a party shall be deemed to have been sent or given to that party.

(2) A party may at any time by notice to the Secretary and to the other party change his address for service under these rules.

(3) Where a notice of appeal is not delivered, it shall be sent by the recorded delivery service.

(4) Where for any sufficient reason service of any document or notice cannot be effected in the manner prescribed under this rule, the President or a Regional Chairman may make an order for substituted service in such manner as he may deem fit and such service shall have the same effect as service in the manner prescribed under this rule.

(1)

Section 6(4A) was inserted by the Trade Union Reform and Employment Rights Act 1993 (c. 19).

(2)

S.I.1993/2687.

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