The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013

INTRODUCTORY AND GENERAL

Interpretation

1.—(1) In these Rules—

“ACAS” means the Advisory, Conciliation and Arbitration Service referred to in section 247 of the Trade Union and Labour Relations (Consolidation) Act 1992(1);

“claim” means any proceedings before an Employment Tribunal making a complaint;

“claimant” means the person bringing the claim;

“Commission for Equality and Human Rights” means the body established under section 1 of the Equality Act 2006(2);

“complaint” means anything that is referred to as a claim, complaint, reference, application or appeal in any enactment which confers jurisdiction on the Tribunal;

“Employment Appeal Tribunal” means the Employment Appeal Tribunal established under section 87 of the Employment Protection Act 1975(3) and continued in existence under section 135 of the Employment Protection (Consolidation) Act 1978(4) and section 20(1) of the Employment Tribunals Act;

“electronic communication” has the meaning given to it by section 15(1) of the Electronic Communications Act 2000(5);

“employee’s contract claim” means a claim brought by an employee in accordance with articles 3 and 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994(6) or articles 3 and 7 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994(7);

“employer’s contract claim” means a claim brought by an employer in accordance with articles 4 and 8 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994(8) or articles 4 and 8 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994(9);

“Employment Tribunal” or “Tribunal” means an employment tribunal established in accordance with regulation 4, and in relation to any proceedings means the Tribunal responsible for the proceedings in question, whether performing administrative or judicial functions;

“Employment Tribunals Act” means the Employment Tribunals Act 1996(10);

“Equality Act” means the Equality Act 2010(11);

“full tribunal” means a Tribunal constituted in accordance with section 4(1) of the Employment Tribunals Act(12);

“Health and Safety Act” means the Health and Safety at Work etc. Act 1974(13);

“improvement notice” means a notice under section 21 of the Health and Safety Act;

“levy appeal” means an appeal against an assessment to a levy imposed under section 11 of the Industrial Training Act 1982(14);

“Minister” means Minister of the Crown;

“prescribed form” means any appropriate form prescribed by the Secretary of State in accordance with regulation 12;

“present” means deliver (by any means permitted under rule 85) to a tribunal office;

“President” means either of the two presidents appointed from time to time in accordance with regulation 5(1);

“prohibition notice” means a notice under section 22 of the Health and Safety Act(15);

“Regional Employment Judge” means a person appointed or nominated in accordance with regulation 6(1) or (2);

“Register” means the register of judgments and written reasons kept in accordance with regulation 14;

“remission application” means any application which may be made under any enactment for remission or part remission of a Tribunal fee;

“respondent” means the person or persons against whom the claim is made;

“Tribunal fee” means any fee which is payable by a party under any enactment in respect of a claim, employer’s contract claim, application or judicial mediation in an Employment Tribunal;

“tribunal office” means any office which has been established for any area in either England and Wales or Scotland and which carries out administrative functions in support of the Tribunal, and in relation to particular proceedings it is the office notified to the parties as dealing with the proceedings;

“unlawful act notice” means a notice under section 21 of the Equality Act 2006(16);

“Vice President” means a person appointed or nominated in accordance with regulation 6(3) or (4);

“writing” includes writing delivered by means of electronic communication.

(2) Any reference in the Rules to a Tribunal applies to both a full tribunal and to an Employment Judge acting alone (in accordance with section 4(2) or (6) of the Employment Tribunals Act(17)).

(3) An order or other decision of the Tribunal is either—

(a) a “case management order”, being an order or decision of any kind in relation to the conduct of proceedings, not including the determination of any issue which would be the subject of a judgment; or

(b) a “judgment”, being a decision, made at any stage of the proceedings (but not including a decision under rule 13 or 19), which finally determines—

(i) a claim, or part of a claim, as regards liability, remedy or costs (including preparation time and wasted costs); or

(ii) any issue which is capable of finally disposing of any claim, or part of a claim, even if it does not necessarily do so (for example, an issue whether a claim should be struck out or a jurisdictional issue).

Overriding objective

2.  The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—

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

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(c) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense.

A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.

Alternative dispute resolution

3.  A Tribunal shall wherever practicable and appropriate encourage the use by the parties of the services of ACAS, judicial or other mediation, or other means of resolving their disputes by agreement.

Time

4.—(1) Unless otherwise specified by the Tribunal, an act required by these Rules, a practice direction or an order of a Tribunal to be done on or by a particular day may be done at any time before midnight on that day. If there is an issue as to whether the act has been done by that time, the party claiming to have done it shall prove compliance.

(2) If the time specified by these Rules, a practice direction or an order for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day. “Working day” means any day except a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under section 1 of the Banking and Financial Dealings Act 1971(18).

(3) Where any act is required to be, or may be, done within a certain number of days of or from an event, the date of that event shall not be included in the calculation. (For example, a response shall be presented within 28 days of the date on which the respondent was sent a copy of the claim: if the claim was sent on 1st October the last day for presentation of the response is 29th October.)

(4) Where any act is required to be, or may be, done not less than a certain number of days before or after an event, the date of that event shall not be included in the calculation. (For example, if a party wishes to present representations in writing for consideration by a Tribunal at a hearing, they shall be presented not less than 7 days before the hearing: if the hearing is fixed for 8th October, the representations shall be presented no later than 1st October.)

(5) Where the Tribunal imposes a time limit for doing any act, the last date for compliance shall, wherever practicable, be expressed as a calendar date.

(6) Where time is specified by reference to the date when a document is sent to a person by the Tribunal, the date when the document was sent shall, unless the contrary is proved, be regarded as the date endorsed on the document as the date of sending or, if there is no such endorsement, the date shown on the letter accompanying the document.

Extending or shortening time

5.  The Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in these Rules or in any decision, whether or not (in the case of an extension) it has expired.

Irregularities and non-compliance

6.  A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the Tribunal (except for an order under rules 38 or 39) does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include all or any of the following—

(a) waiving or varying the requirement;

(b) striking out the claim or the response, in whole or in part, in accordance with rule 37;

(c) barring or restricting a party’s participation in the proceedings;

(d) awarding costs in accordance with rules 74 to 84.

Presidential Guidance

7.  The Presidents may publish guidance for England and Wales and for Scotland, respectively, as to matters of practice and as to how the powers conferred by these Rules may be exercised. Any such guidance shall be published by the Presidents in an appropriate manner to bring it to the attention of claimants, respondents and their advisers. Tribunals must have regard to any such guidance, but they shall not be bound by it.

(1)

1992 c. 52.

(2)

2006 c. 3.

(3)

1975 c. 71; section 87 was repealed by the Employment Protection (Consolidation) Act 1978 (c. 44), Schedule 17.

(4)

1978 c. 44; section 135 was repealed by the Employment Tribunals Act 1996 (c. 17), Schedule 3, Part I.

(5)

2000 c. 7; section 15(1) was amended by the Communications Act 2003 (c. 21), Schedule 17, paragraph 158.

(6)

S.I. 1994/1623; by virtue of section 1 of the Employment Rights (Dispute Resolution) Act 1998 (c. 8) industrial tribunals were renamed employment tribunals and references to “industrial tribunal” and “industrial tribunals” in any enactment were substituted with “employment tribunal” and “employment tribunals”. By virtue of the destination table to the Employment Tribunals Act 1996, the reference in article 3(a) to “section 131(2) of the 1978 Act” should be read as section 3(2) of the Employment Tribunals Act 1996. Article 7 was amended by S.I. 2011/1133.

(7)

S.I. 1994/1624; by virtue of the destination table to the Employment Tribunals Act 1996 the reference in article 3(a) to “section 131(2) of the 1978 Act” should be read as section 3(2) of the Employment Tribunals Act 1996. Article 7 was amended by S.I. 2011/1133.

(8)

Article 8 was amended by S.I. 2011/1133.

(9)

Article 8 was amended by S.I. 2011/1133.

(10)

1996 c. 17.

(11)

2010 c. 15.

(12)

Section 4(1)(b) was substituted by the Employment Rights (Dispute Resolution) Act 1998, section 4, from a date to be appointed.

(13)

1974 c. 37.

(14)

1982 c. 10. Section 11 was amended by the Employment Act 1989 (c. 38), Schedule 4, paragraph 10; there are other amending instruments but none is relevant.

(15)

Section 22 was amended by the Consumer Protection Act 1987 (c. 43), Schedule 3, paragraph 2.

(16)

2006 c. 3; section 21 was amended by the Equality Act 2010 (c. 15), Schedule 26, paragraph 67.

(17)

Section 4(2) and (6) was amended by the Tribunals, Courts and Enforcement Act 2007 (c. 15), Schedule 8, paragraphs 35 and 37.

(18)

1971 c. 80.