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

Citation and commencement

1.—(1) These Regulations may be cited as the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and the Rules of Procedure contained in Schedules 1, 2 and 3 may be referred to, respectively, as—

(a) the Employment Tribunals Rules of Procedure 2013;

(b) the Employment Tribunals (National Security) Rules of Procedure 2013; and

(c) the Employment Tribunals (Equal Value) Rules of Procedure 2013.

(2) This regulation and regulations 3 and 11 come into force on 1st July 2013 and the remainder of these Regulations (including the Schedules) come into force on 29th July 2013.

Revocation

2.  Subject to the savings in regulation 15 the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004(1) are revoked.

Interpretation

3.  Except in the Schedules which are subject to the definitions contained in the Schedules, in these Regulations—

“2004 Regulations” means the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004;

“appointing office holder” means, in England and Wales, the Lord Chancellor, and in Scotland, the Lord President;

“Employment Tribunals Act” means the Employment Tribunals Act 1996;

“Lord President” means the Lord President of the Court of Session;

“national security proceedings” means proceedings in relation to which a direction is given, or an order is made, under rule 94 of Schedule 1;

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

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

“Senior President of Tribunals” means the person appointed in accordance with section 2 of the Tribunals, Courts and Enforcement Act 2007;

“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;

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

Establishment of employment tribunals

4.  There are to be tribunals known as employment tribunals.

President of Employment Tribunals

5.—(1) There shall be a President of Employment Tribunals, responsible for Tribunals in England and Wales, and a President of Employment Tribunals, responsible for Tribunals in Scotland, appointed by the appointing office holder.

(2) A President shall be—

(a) a person who satisfies the judicial-appointment eligibility condition within the meaning of section 50 of the Tribunals, Courts and Enforcement Act 2007 on a 5-year basis;

(b) an advocate or solicitor admitted in Scotland of at least five years standing; or

(c) a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least five years standing.

(3) A President may at any time resign from office by giving the appointing officer holder notice in writing to that effect.

(4) The appointing officer holder may remove a President from office on the ground of inability or misbehaviour, or if the President is adjudged to be bankrupt or makes a composition or arrangement with his creditors.

(5) Where a President is unable to carry out the functions set out in these Regulations, those functions may be discharged by a person nominated by the appointing office holder (save that any nomination in relation to England and Wales shall be made by the Lord Chief Justice following consultation with the Senior President of Tribunals, rather than by the Lord Chancellor).

(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005(2)) to exercise his functions under this regulation.

Regional Employment Judges and the Vice President

6.—(1) The Lord Chancellor may appoint Regional Employment Judges.

(2) The President (England and Wales) or the Regional Employment Judge for an area may nominate an Employment Judge to discharge the functions of the Regional Employment Judge for that area.

(3) The Lord President may appoint a Vice President.

(4) The President (Scotland) or the Vice President may nominate an Employment Judge to discharge the functions of the Vice President.

(5) Appointments and nominations under this regulation shall be from the full-time Employment Judges on the panel referred to in regulation 8(2)(a).

Responsibilities of the Presidents, Regional Employment Judges and Vice President

7.—(1) The President shall, in relation to the area for which the President is responsible, use the resources available to—

(a) secure, so far as practicable, the speedy and efficient disposal of proceedings;

(b) determine the allocation of proceedings between Tribunals; and

(c) determine where and when Tribunals shall sit.

(2) The President (England and Wales) may direct Regional Employment Judges, and the President (Scotland) may direct the Vice President, to take action in relation to the fulfilment of the responsibilities in paragraph (1) and the Regional Employment Judges and Vice President shall follow such directions.

Panels of members for tribunals

8.—(1) There shall be three panels of members for the Employment Tribunals (England and Wales) and three panels of members for the Employment Tribunals (Scotland).

(2) The panels of members shall be—

(a) a panel of chairmen who satisfy the criteria set out in regulation 5(2) and are appointed by the appointing office holder (in these Regulations (including the Schedules) referred to as “Employment Judges”);

(b) a panel of persons appointed by the Lord Chancellor after consultation with organisations or associations representative of employees; and

(c) a panel of persons appointed by the Lord Chancellor after consultation with organisations or associations representative of employers.

(3) Members of the panels shall hold and vacate office in accordance with the terms of their appointment, but may resign from office by written notice to the person who appointed them under paragraph (2), and any member who ceases to hold office shall be eligible for reappointment.

(4) The President may establish further specialist panels of members referred to in paragraph (2) and may select persons from those panels to deal with proceedings in which particular specialist knowledge would be beneficial.

Composition of tribunals

9.—(1) Where proceedings are to be determined by a Tribunal comprising an Employment Judge and two other members, the President, Vice President or a Regional Employment Judge shall select—

(a) an Employment Judge; and

(b) one member from each of the panels referred to in regulation 8(2)(b) and (c),

and for all other proceedings shall select an Employment Judge.

(2) The President, Vice President or a Regional Employment Judge may select him or herself as the Employment Judge required under paragraph (1).

(3) The President, Vice President or a Regional Employment Judge may select from the appropriate panel a substitute for a member previously selected to hear any proceedings.

(4) This regulation does not apply in relation to national security proceedings (see regulation 10(2)).

National security proceedings – panel of members and composition of tribunals

10.—(1) The President shall select—

(a) a panel of persons from the panel referred to in regulation 8(2)(a);

(b) a panel of persons from the panel referred to in regulation 8(2)(b); and

(c) a panel of persons from the panel referred to in regulation 8(2)(c),

who may act in national security proceedings.

(2) Where proceedings become national security proceedings, the President, Vice President or a Regional Employment Judge shall—

(a) select an Employment Judge from the panel referred to in paragraph (1)(a) and may select him or herself; and

(b) where the proceedings are to be determined by a Tribunal comprising an Employment Judge and two other members, select in addition one member from each of the panels referred to in sub-paragraphs (b) and (c) of paragraph (1).

Practice directions

11.—(1) The President may make, vary or revoke practice directions about the procedure of the Tribunals in the area for which the President is responsible, including—

(a) practice directions about the exercise by Tribunals of powers under these Regulations (including the Schedules); and

(b) practice directions about the provision by Employment Judges of mediation, in relation to disputed matters in a case that is the subject of proceedings, and may permit an Employment Judge to act as mediator in a case even though they have been selected to decide matters in that case.

(2) Practice directions may make different provision for different cases, different areas, or different types of proceedings.

(3) Any practice direction made, varied or revoked shall be published by the President in an appropriate manner to bring it to the attention of the persons to whom it is addressed.

Power to prescribe

12.—(1) The Secretary of State may prescribe—

(a) one or more versions of a form which shall be used by claimants to start proceedings in a Tribunal;

(b) one or more versions of a form which shall be used by respondents to respond to a claim before a Tribunal; and

(c) that the provision of certain information on the prescribed forms is mandatory.

(2) It is not necessary to use a form prescribed under paragraph (1) if the proceedings are—

(a) referred to a Tribunal by a court;

(b) proceedings in which a Tribunal will be exercising its appellate jurisdiction; or

(c) proceedings brought by an employer under section 11 of the Employment Rights Act 1996(3).

(3) The Secretary of State shall publish the prescribed forms in an appropriate manner to bring them to the attention of prospective claimants, respondents and their advisers.

Application of Schedules 1 to 3

13.—(1) Subject to paragraph (2), Schedule 1 applies to all proceedings before a Tribunal except where separate rules of procedure made under the provisions of any enactment are applicable.

(2) Schedules 2 and 3 apply to modify the rules in Schedule 1 in relation, respectively, to proceedings which are—

(a) national security proceedings; or

(b) proceedings which involve an equal value claim (as defined in rule 1 of Schedule 3).

Register and proof of judgments

14.—(1) The Lord Chancellor shall maintain a register containing a copy of all judgments and written reasons issued by a Tribunal which are required to be entered in the register under Schedules 1 to 3.

(2) The Lord Chancellor shall delete any entry in the register six years from the date of judgment.

(3) A document purporting to be certified by a member of staff of a Tribunal to be a true copy of an entry of a judgment in the register shall, unless the contrary is proved, be sufficient evidence of the document and its contents.

Transitional provisions

15.—(1) Subject to paragraphs (2) and (3), these Regulations and the Rules of Procedure contained in Schedules 1 to 3 apply in relation to all proceedings to which they relate.

(2) Where a respondent receives from a Tribunal a copy of the claim form before 29th July 2013, rules 23 to 25 of Schedule 1 do not apply to the proceedings and rule 7 of Schedule 1 to the 2004 Regulations continues to apply.

(3) Where in accordance with Schedules 3 to 5 of the 2004 Regulations, a notice of appeal was presented to a Tribunal before 29th July 2013, Schedule 1 does not apply to the proceedings and Schedule 3, 4 or 5, as appropriate, of the 2004 Regulations continues to apply.

Jo Swinson

Parliamentary Under Secretary of State for Employment Relations and Consumer Affairs

Department for Business, Innovation and Skills

28th May 2013