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The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004

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Explanatory Note

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These Regulations re-enact the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 and the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 with amendments. These Regulations have been drafted in simpler language and have been re-numbered and re-ordered. In addition to minor and drafting amendments and the updating of statutory and other references these Regulations make the following changes of substance.

Regulation 7 introduces the office of Vice President in Scotland to reflect the fact that Scotland is not a Region. The role of the Vice President is equivalent to that of a Regional Chairman in England and Wales.

Regulation 13 gives the President power to make practice directions in relation to the area (either Scotland or England and Wales) for which he is responsible.

Regulation 14 delegates to the Secretary of State the power to prescribe forms which are to be used by claimants and respondents in proceedings before an Employment Tribunal. The prescribed forms do not have to be used in relation to the proceedings listed in regulation 14(3).

Regulation 16 provides that Schedule 1 to the Regulations is to apply to all proceedings before an Employment Tribunal. However Schedule 1 is modified by Schedules 2 to 5 in relation to proceedings to which each of those Schedules apply respectively.

Regulation 17 provides that any judgments and their associated written reasons are to be entered on the public register.

Regulation 19 defines the circumstances in which an Employment Tribunal in England and Wales and in Scotland has jurisdiction.

Regulation 20 makes transitional provision in relation to proceedings which were commenced prior to 1st October 2004. The Regulations apply to all proceedings commenced on or after 1st October 2004.

Schedule 1 to the Regulations introduces some new terminology such as “claim”, “claimant”, “response”, “case management discussion”, “default judgment” and “judgment”.

Rules 1 to 3 of Schedule 1 provide that as from 6 April 2005 a claim must be presented using a prescribed form and that if it is not used the claim will not be accepted. The provision of certain information (“the required information ”) is mandatory if the claim is to be accepted and allowed to proceed. Much of the required information is designed to establish whether the statutory disciplinary and grievance procedures under the Employment Act 2002 (Dispute Resolution) Regulations 2004 (S.I. 2004/752) are applicable and have been followed.

Rule 4 of Schedule 1 provides that the respondent has 28 days from the date on which he was sent the claim in order to present his response. That time limit may be extended if an application to do so is made before the time limit has expired. As from 6 April 2005 a response must be presented using a prescribed form.

Rule 6 of Schedule 1 provides that the response will not be accepted if the required information in relation to the response has not been provided or, after 6th April 2005, the prescribed form has not been used.

Rule 7 of Schedule 1 sets out the details of any counterclaim which must be provided and it allows a chairman to establish the procedure which is to apply to a counterclaim in particular proceedings. Procedure in relation to counterclaims generally may be provided for by practice direction.

Rule 8 of Schedule 1 introduces default judgments where no response has been accepted in proceedings and the time limit for entering the response has expired.

Rules 10 to 13 of Schedule 1 describe the tribunal’s case management powers and the procedure for making applications in proceedings.

Rules 14 to 19 of Schedule 1 describe the different types of hearing which may be held, how such hearings are to be conducted and the orders which may be made at different types of hearings.

Rules 22 to 24 of Schedule 1 provide that in relation to the majority of proceedings brought before Employment Tribunals there shall be a fixed period of conciliation of either “short” or “standard” length. Rule 23 makes provision for the early termination of such conciliation periods in certain circumstances.

Rule 25 of Schedule 1 establishes the procedure to be followed in order to withdraw a claim.

Rule 26 of Schedule 1 defines a Hearing (as opposed to a “hearing” which is defined in regulation 2).

Rule 28 of Schedule 1 defines a judgment and an order. Rule 29 specifies the matters which are to be included in a judgment. Rule 30 sets out the circumstances in which it is possible to obtain written reasons for a judgment.

Rules 33 to 36 of Schedule 1 establish new procedures for reviewing certain judgments and decisions made by a tribunal or chairman.

Rules 38 to 41 of Schedule 1 describe the circumstances in which a costs order (or in Scotland, an order for expenses) may be made. A costs order may only be made if the party in favour of whom the order is made has been legally represented at the relevant time. The relevant time will generally be at the Hearing. The ability of the paying party to pay the costs order may also be taken into account by the tribunal or chairman.

Rules 42 to 45 of Schedule 1 describe the circumstances in which a preparation time order may be made. A preparation time order may only be made if the party in favour of whom the order is made has not been legally represented at the relevant time. The relevant time will generally be at the hearing. The ability of the paying party to pay the preparation time order may be taken into account by the tribunal or chairman. Rule 45 sets out how the amount of a preparation time order is calculated.

Rule 46 of Schedule 1 provides that a tribunal or chairman may not make a preparation time order and a costs order in favour of the same party in the same proceedings.

Rules 48 of Schedule 1 introduces wasted costs orders which may be made against representatives, but not representatives who are not acting pursuit of profit in relation to those proceedings.

Rule 50 of Schedule 1 provides that a tribunal or chairman may make a temporary restricted reporting order without holding a hearing and sets out the circumstances in which such an order will lapse. Provision is also included that any person may make representations to the tribunal or chairman before a full restricted reporting order is made.

Rule 57 of Schedule 1 provides that proceedings may be transferred between Scotland and England and Wales where the relevant tribunal has jurisdiction in accordance with regulation 19.

Schedule 3 modifies the application of Schedule 1 in relation to levy appeals under the Industrial Training Act 1982.

Schedule 4 modifies the application of Schedule 1 in relation to appeals against an improvement or prohibition notice under the Health and Safety at Work etc. Act 1974.

Schedule 5 modifies the application of Schedule 1 in relation to appeals against a non-discrimination notice under either the Sex Discrimination Act 1975, the Race Relations Act 1976 or the Disability Rights Commission Act 1999.

A Regulatory Impact Assessment in respect of these Regulations is available and a copy can be obtained from the Department of Trade and Industry, Employment Relations Directorate, 1 Victoria Street, London SW1H 0ET. Copies have also been placed in the libraries of both Houses of Parliament.

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