Procedure for deciding tribunal cases
Summary and Background
68.Section 4 of the ETA 1996 sets out the required composition of employment tribunals for the determination of claims and provides that any claim submitted to an employment tribunal that is not withdrawn or settled must be determined at a hearing by either a judge sitting alone or a judge and lay members. The need for parties to attend a hearing for simple or low value claims can often involve costs in excess of the value of the claim, and can involve parties waiting a number of weeks for the case to be heard.
69.At present, legal officers may be appointed in accordance with regulations under section 1(1) of the ETA 1996 and may do certain acts (see section 4(6B) of the ETA 1996), but may not determine proceedings unless the parties agree the terms of the determination or the claim is withdrawn.
70.Currently, section 28(2) of the ETA 1996 provides that proceedings before the Employment Appeal Tribunal shall be heard by a judge and either two or four appointed members, so that in either case there is an equal number of persons whose knowledge and experience of industrial relations is as a representative of (a) employers; and (b) workers. That general rule can be varied, with the consent of the parties, to allow a judge to sit with one or three members (section 28(3)). It can also be varied so that, on an appeal from an employment tribunal constituted by an Employment Judge sitting alone, a judge shall sit alone in the Employment Appeal Tribunal unless the judge directs that proceedings should be heard with members (section 28(4) and 28(4A)).
Section 11: Decisions by legal officers
71.This section amends section 4 of the ETA 1996 to provide that legal officers may make determinations of certain employment tribunal claims. Legal officers will be competent to make determinations where the parties consent in writing and the proceedings are of a type specified in an order made by the Secretary of State and the Lord Chancellor. Any such order will be subject to the affirmative resolution of Parliament.
72.Section 11 would allow employment tribunal claims to be determined by a legal officer without the need for a hearing, subject to the consent of both parties. Cases determined by a legal officer would have the same status as if they had been determined by a judge or a judge and lay members.
Section 12: Composition of Employment Appeal Tribunal
73.This section amends the statutory framework governing the composition of the Employment Appeal Tribunal.
74.Subsection (2) substitutes new subsections (2) to (7) for the current (2) to (4A) of section 28 of the ETA 1996. Under the new provisions, proceedings before the Employment Appeal Tribunal are to be heard by a judge alone. However, a judge may direct that proceedings are to be heard by a judge and either two or four appointed members. In addition, a judge may, with the consent of the parties, direct that proceedings are to be heard by a judge and either one or three appointed members.
75.New subsection (5) of section 28 provides that the Lord Chancellor may by order specify that proceedings of a particular description must be heard by a judge and either two or four appointed members.
76.New subsection (6) of section 28 provides that where the judges is to sit with either two or four appointed members there shall be an equal number of worker and employer representative members.
77.Subsection (4) provides that any order made by the Lord Chancellor under the power inserted by subsection (2) must be subject to the affirmative resolution of Parliament.
78.Subsection (5) repeals paragraph 46 of Schedule 8 to the Tribunals Courts and Enforcement Act 2007; that paragraph made a previous amendment to section 28 of the ETA 1996.
