Employment Tribunal Rules of Procedure: Interpretation and Decision Making, Slides of Communication

Download Employment Tribunal Rules of Procedure: Interpretation and Decision Making and more Slides Communication in PDF only on Docsity!

Fundamental review of

employment tribunal

rules: employment

tribunal rules of

procedure

CONTENTS

EMPLOYMENT TRIBUNAL RULES

OF PROCEDURE

INTRODUCTORY AND GENERAL

1. Overriding Objective. 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 the case 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 shall assist the Tribunal to further the overriding objective and shall co-operate generally.

2. Alternative dispute resolution. A Tribunal shall wherever practicable and appropriate encourage and facilitate the use by the parties of the services of Acas, judicial or other mediation, or other means of resolving their disputes by agreement.
3. Interpretation

(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;

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

“claimant” means the person or persons bringing the claim;

“complaint” means anything that is referred to in the relevant legislation as a claim, complaint, reference, application or appeal;

“Convention rights” has the same meaning as in section 1 of the Human Rights Act 1998;

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

“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 1990 or articles 3 and 7 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1990;

“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 1990 or articles 4 and 8 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1990;

“Employment Judge” or “Judge” means an Employment Judge within the meaning of section 3A of the Employment Tribunals Act 1996;

“Employment Tribunal” or “Tribunal” means an employment tribunal established in accordance with regulation #, and in relation to any proceedings means the tribunal responsible for the proceedings in question;

“full tribunal” means a Tribunal constituted in accordance with section 4 (1) of the Employment Tribunals Act 1996;

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

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

“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 1996).

(3) Orders and other decisions of the Tribunal may be variously described, as seems most appropriate to the Employment Judge, but in these Rules the following terms have specific meanings—

“case management direction” means an order or decision of any kind in relation to the conduct of proceedings but does not include the determination of any substantive issue;

“judgment” means any decision which finally determines a claim, or part of a claim, as regards either liability, remedy or costs (including preparation time and wasted costs) or any issue which is capable of finally disposing of any such claim, even if it will not necessarily do so (for example, an issue whether a claim should be struck out or a jurisdictional issue), whether made at a preliminary hearing or a final hearing (but not including any decision under rules 12 or 18).

(4) Where these Rules refer to the Tribunal carrying out administrative rather than judicial functions, those functions will be performed by the staff of the relevant tribunal office.

4. Rules about time

(1) An act required by these Rules or by any order of a Tribunal to be done on or by a particular day must be done before 5pm on that day.

(2) If the time specified by these Rules, a practice direction or a direction 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.

(3) Where any act must 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 must 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 must 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 must be presented not less than 7 days before the hearing: if the hearing is fixed for 8th October, the representations must be submitted 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.

5. Extending or shortening time. 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.
6. Irregularities and non-compliance. A failure to comply with any provision of these Rules or any order of the Tribunal 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— (a) waiving or varying the requirement; (b) striking out the claim or the response, in whole or in part, in accordance with rule 34; (c) barring or restricting a party's participation in the proceedings; or (d) awarding costs in accordance with rules 69 - 75.

10. Rejection : form not used or failure to supply minimum information. The staff of the tribunal office will reject a claim if— (a) it is not made on a prescribed form; or (b) it does not contain all of the following information— (i) each claimant’s name; (ii) each claimant’s address; (iii) the name of each respondent; and (iv) each respondent’s address.

The form will be returned to the claimant with a notice of rejection explaining why it has been rejected. The notice should also contain information about how to apply for a reconsideration.

11. Rejection: substantive defects. A claim, or part of it, will also be rejected if an Employment Judge to whom the claim form has been referred by the staff of the tribunal office considers that the claim or part of it— (a) is one which the Tribunal has no jurisdiction to consider; or (b) is in a form which cannot sensibly be responded to or is otherwise an abuse of the process.

The form will be returned to the claimant together with a notice of rejection giving the Judge’s reasons for deciding that the claim, or part of it, should be rejected and enclosing a fresh claim form. The notice should also contain information about how to apply for a reconsideration.

12. Reconsideration of rejection. A claimant whose claim has been rejected (in whole or in part) under rule 10 or rule 11 may apply for a reconsideration on the basis that the decision to reject was wrong. The application must be in writing and presented to the Tribunal within 14 days of the date that the notice of rejection was sent. The application must explain why the decision is said to have been wrong and state whether the claimant requests a hearing. If the claimant does not request a hearing, or the Employment Judge decides, on considering the application, that the claim should be accepted in full, the Employment Judge will determine the application without a hearing.

13. Protected disclosure claims: notification to the regulator. If the claim alleges that the claimant has made a protected disclosure, the Tribunal may, with the consent of the claimant, send a copy of any accepted claim, or part of it, to a regulator. (A regulator means a person listed in Schedule 1 to the Public Interest Disclosure (Prescribed Persons) Order 1999; and a protected disclosure has the meaning given by section 43A of the Employment Rights Act 1996.)

THE RESPONSE TO THE CLAIM

14. Sending claim form to respondents. Unless a claim is rejected, the Tribunal will send a copy of the claim form, together with a prescribed response form, to each respondent with a notice which includes information on— (a) whether any part of the claim has been rejected; (b) how to submit a response to the claim, the time limit which applies for doing so and what may happen if a response is not received by the Tribunal within that time limit.
15. Response. The respondent’s response must be on the prescribed form and must be presented to the tribunal office within 28 days of the date that the copy of the claim form was sent by the Tribunal.
16. Rejection: form not used or failure to supply minimum information. The staff of the tribunal office will reject a response if— (a) it is not made on the prescribed form; or (b) it does not contain all of the following information: (i) the respondent’s full name; (ii) the respondent’s address; and (iii) whether the respondent wishes to resist any part of the claim.

The form will be returned to the respondent with a notice of rejection explaining why it has been rejected and enclosing a fresh response form. The notice should explain what steps may be taken by the respondent, including the need (if appropriate) to apply for an extension of time, and how to apply for a reconsideration.

(a) An Employment Judge will decide whether on the available material (which may include further information which the parties are required by the Judge to provide), a determination can properly be made on the claim, or part of it. To the extent that it can the Judge will issue a judgment accordingly. Otherwise, a hearing will be fixed before an Employment Judge alone; (b) The respondent will be entitled to notice of any hearings and decisions of the Tribunal but, unless and until an extension of time is granted, will only be entitled to participate in any hearing to the extent permitted by the Employment Judge.

21. Notification of acceptance. Where the Tribunal accepts the response it shall send a copy of it to all other parties.

INITIAL CONSIDERATION OF CLAIM FORM AND

RESPONSE

22. Consideration of the file. As soon as possible after the acceptance of the response, the file will be considered by an Employment Judge, with a view to confirming that there are arguable complaints and defences within the jurisdiction of the Tribunal; and, if so, to giving case management directions. For that purpose the Judge may require any party to provide further information.
23. Dismissal of claim (or part)

(1) If the Employment Judge considers either that the Tribunal has no jurisdiction to consider the claim, or part of it, or that the claim, or part of it, has no reasonable prospect of success, the Tribunal will send a notice to the claimant— (a) setting out the Judge’s view and the reasons for it; and (b) ordering that the claim, or the part in question, will stand dismissed on such date as is specified in the notice unless before that date the claimant has presented a written request for a hearing.

(2) If no request for a hearing is received, the claim will stand dismissed from the date specified without further order (although the Tribunal will write to the parties to confirm what has occurred). If such a request is received within the specified time a hearing will be fixed for the purpose of deciding whether the claim, or part of it, should be permitted

to proceed. The respondent may, but need not, attend and participate in the hearing. If any part of the claim is permitted to proceed the Employment Judge will give case management directions.

24. Dismissal of response.

(1) If the Employment Judge considers that the response to the claim, or part of it, has no reasonable prospect of success the Tribunal will send a notice to the respondent— (a) setting out the Judge’s view and the reasons for it; (b) ordering that the response, or the relevant part of it, will stand dismissed with effect from the date specified unless before that date the respondent presents a written request for a hearing; and (c) specifying the consequences of the dismissal of the response, in accordance with (3) below.

(2) If no request for a hearing is received, the response will stand dismissed from the date specified without further order (although the Tribunal will write to confirm what has occurred). If such a request is received within the specified time, a hearing will be fixed for the purpose of deciding whether the response, or any part of it, has a reasonable prospect of success. The claimant may, but need not, attend and participate in the hearing. If any part of the response is permitted to proceed the Employment Judge will give case management directions.

(3) Where a response is dismissed, the consequences will be as if no response had been presented, as set out in rule 20 above.

25. Case management directions. Except in a case where notice is given under rule 23 or 24, the Employment Judge conducting the initial consideration will give written case management directions, which may include directions for the listing of a preliminary or final hearing, and/or propose judicial mediation or other forms of dispute resolution.

CASE MANAGEMENT DIRECTIONS AND OTHER POWERS

(2) When the Tribunal makes a decision in respect of the common or related issues it must send a copy of that decision to each party in each of the related cases and, subject to paragraph (3), that decision shall be binding on each of those parties.

(3) Within 28 days after the date on which the Tribunal sent a copy of the decision to a party under paragraph (2), that party may apply in writing for a direction that the decision does not apply to, and is not binding on the parties to, a particular related case.

(4) If the lead case or cases are withdrawn before the Tribunal makes a decision in respect of the common or related issues, it must give directions as to— (a) whether another claim or other claims are to be specified as a lead case or lead cases; and (b) whether any direction affecting the related cases should be set aside or varied.

32. Applications for case management directions. An application by a party for particular case management directions may be made either at a hearing or by writing to the Tribunal. The Tribunal may deal with such an application in writing or direct that it be dealt with at a preliminary or final hearing.
33. Correspondence with the Tribunal: copying to other parties. The general rule is that whenever any party sends any communication to the Tribunal (except an application under rule 28) it must send a copy to all other parties, and state that it has done so (by use of “cc” or otherwise). The Tribunal may permit a departure from this rule where it considers it in the interests of justice to do so.
34. Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out (i.e. dismiss) all or part of any claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal (including a deposit order under rule 36);

(d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing of the claim or response (or the part struck out).

(2) A claim or response may not be struck out unless the party in question has been given the opportunity to make representations, either in writing or, if requested by the party, at a hearing.

(3) Where a response is struck out, the consequences will be as if no response had been presented, as set out in rule 20 above.

35. Unless orders. An order may be made in terms that specify that if it is not complied with by the date specified the claim or response, or part of it, will stand dismissed without further order. If a claim or response is dismissed on this basis the Tribunal will give written notice to the parties confirming what has occurred. A party whose claim or response has been dismissed as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing the Tribunal may determine it on the basis of written representations. Where a response is dismissed under this rule, the consequences will be as if no response had been presented, as set out in rule 20.
36. Deposit orders

(1) If at a preliminary hearing the Tribunal considers that any complaint has little reasonable prospect of success, it may make an order requiring that party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that complaint.

(2) The Tribunal must make reasonable enquiries into the paying party's financial means to pay the deposit and must take any such information into account in deciding the amount of the deposit.