Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2004

Regulations 5(b), 6(1) and 7(2)(b)

SCHEDULE 2RULES OF PROCEDURE: APPEALS

Notice of appeal

1.—(1) An appeal, as referred to in Article 15 (in relation to directions), 62(7) or 63(5) (in relation to a notice of refusal) of the Order of 1998, shall be commenced by the appellant sending to the Secretary a notice of appeal which shall be in writing and shall set out, where applicable –

(a)the name and address of the appellant and, if different, an address within the United Kingdom to which he requires notices and documents relating to the appeal to be sent;

(b)the date of the notice containing the directions;

(c)particulars of the directions appealed against; and

(d)the grounds of the appeal.

Duty of the Secretary upon receipt of notice of appeal

2.  Upon receiving a notice of appeal the Secretary shall –

(a)enter the following details in the Register, namely –

(i)the case number;

(ii)the date the Secretary received the notice of appeal;

(iii)the name and address of the appellant;

(iv)the place where the appeal is to be held;

(v)the fact that the appeal is an appeal against a direction under Article 15, 62(7) or 63(5) of the Order of 1998;

(b)send a copy of the notice of appeal to the Commission; and

(c)inform the parties in writing of the case number of the appeal entered in the Register (which shall thereafter constitute the title of the proceedings) and of the address to which notices and other communications to the Secretary shall be sent.

Power to require attendance of witnesses and production of documents, etc.

3.—(1) A tribunal may on the application of a party to the proceedings made either by notice to the Secretary or at the hearing –

(a)require a party to furnish in writing to the other party further particulars of the grounds on which he relies and of any facts and contentions relevant thereto;

(b)require one party to grant to another such discovery or inspection (including the taking of copies) of documents as might be granted by a county court; or

(c)require the attendance of any person in Northern Ireland, including a party, either to give evidence or to produce documents or both,

and may appoint the time at or within which or the place at which any act required in pursuance of this rule is to be done.

(2) Every document containing a requirement under paragraph (1)(b) or (c) shall contain a reference to the fact that under Article 84(9) and (10) of the Order of 1998 any person who without reasonable excuse fails to comply with any such requirement shall be liable on summary conviction to a fine and if without reasonable excuse the failure continues after conviction, shall be liable on a second or subsequent summary conviction to a fine for each day on which the failure continues and the document shall state the amounts of the current maximum fines.

(3) Where a requirement has been imposed under paragraph (1) –

(a)on a party in his absence; or

(b)on a person other than a party,

that party or person may apply to the tribunal by notice to the Secretary to vary or set aside the requirement. Such notice shall be given before the time at which or, as the case may be, the expiration of the time within which the requirement is to be complied with, and the Secretary shall give notice of the application to each party, or where applicable, each party other than the party making the application.

(4) If a requirement under paragraph (1) is not complied with, the tribunal –

(a)may make an order in respect of costs under rule 9(1); or

(b)before or at the hearing, may strike out the whole or part of the notice of appeal,

but a tribunal shall not exercise its powers under this paragraph unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so, or the party has been given an opportunity to show cause orally why the powers conferred by this paragraph should not be exercised.

Time and place of hearing

4.—(1) The President or the Vice-President shall fix the date, time and place of the hearing of the appeal and the Secretary shall not less than 14 days (or such shorter time as may be agreed by him with the parties) before the date so fixed send to each party a notice of hearing together with information and guidance as to attendance at the hearing, witnesses and the bringing of documents (if any), representation by another person and written representations.

(2) Where the President or the Vice-President so directs, the Secretary shall also send notice of the hearing to such persons as may be directed, but the requirements as to the period of notice contained in paragraph (1) shall not apply to any such notices.

The hearing

5.—(1) Any hearing of an appeal shall be heard by a tribunal composed in accordance with regulation 4.

(2) Any hearing of or in connection with an appeal shall take place in public.

(3) Notwithstanding paragraph (2), a tribunal may sit in private for the purposes of –

(a)hearing evidence which in the opinion of the tribunal relates to matters of such a nature that it would be against the interests of national security, public safety or public order to allow the evidence to be given in public;

(b)hearing evidence from any person which in the opinion of the tribunal is likely to consist of –

(i)information which he could not disclose without contravening a prohibition imposed by or under any statutory provision;

(ii)information which has been communicated to him in confidence, or which he has otherwise obtained in consequence of the confidence reposed in him by another person;

(iii)information the disclosure of which would, for reasons other than its effect on negotiations with respect to any of the matters mentioned in Article 96(1) of the Order of 1992, cause substantial injury to any undertaking of his or any undertaking in which he works; or

(iv)information the disclosure of which would create a substantial risk that he or another individual would be subject to physical attack or sectarian harassment.

(4) If a party wishes to submit representations in writing for consideration by the tribunal at the hearing of the appeal, he shall present his representations to the Secretary not less than 7 days before the hearing and shall at the same time send a copy to each other party.

(5) The tribunal may, if it considers it appropriate, consider representations in writing which have been submitted to the Secretary less than 7 days before the hearing.

(6) At any hearing of or in connection with an appeal a party may appear before a tribunal and may be heard in person or be represented by counsel or by a solicitor or by any other person whom he desires to represent him.

Procedure at hearing

6.—(1) At any hearing of or in connection with an appeal a party shall be entitled to make an opening statement, to give evidence, to call witnesses, to cross-examine any witnesses called by the other party and to address the tribunal.

(2) If a party shall fail to appear or to be represented at the time and place fixed for the hearing of an appeal, the tribunal may dispose of the appeal in the absence of that party or may adjourn the hearing to a later date; provided that before disposing of an appeal in the absence of a party the tribunal shall consider any written representations submitted by that party pursuant to rule 5(4) or (5).

(3) A tribunal may require any witness to give evidence on oath or affirmation and for that purpose there may be administered an oath or affirmation in due form.

Decision of tribunal

7.—(1) Where a tribunal is composed of three members its decision may be taken by a majority; and if a tribunal is composed of two members only, the chairman shall have a second or casting vote.

(2) The decision of a tribunal, which may be given orally at the end of a hearing or reserved, shall be recorded in a document signed by the chairman which shall contain the reasons for the decision.

(3) The clerk shall transmit the document signed by the chairman to the Secretary who shall enter it in the Register and shall send a copy of the entry to each of the parties.

(4) The reasons for the decision shall be omitted from the Register in any case in which evidence has been heard in private and the tribunal so directs.

(5) Clerical mistakes in the document referred to in paragraph (2) or errors arising in that document from an accidental slip or omission, may at any time be corrected by the chairman by certificate.

(6) If any document is corrected by a certificate under paragraph (5) or a decision is –

(a)reviewed, revoked or varied under rule 8; or

(b)altered in any way by order of a superior court,

the Secretary shall alter the entry in the Register to conform with any such certificate or order and shall send a copy of the new entry to each of the parties and, where the proceedings were referred to the tribunal by a court, to that court.

(7) Where a document omitted from the Register pursuant to paragraph (4) is corrected by certificate under paragraph (5), the Secretary shall send a copy of the corrected document to the parties; and where there are proceedings before any superior court relating to the decision in question, he shall send a copy to that court together with a copy of the entry in the Register of the document referred to in paragraph (2), if it has been altered under paragraph (6).

(8) Where this rule requires a document to be signed by the chairman of a tribunal composed of three or two persons, but by reason of death or incapacity the chairman is unable to sign it, the document shall be signed by the other members or member of the tribunal, who shall certify that the chairman is unable to sign.

Review of tribunal’s decision

8.—(1) Subject to the provisions of this rule, a tribunal shall have power on the application of a party or of its own motion, to review any decision on the grounds that –

(a)the decision was wrongly made as a result of an error on the part of the staff of the Office of the Tribunals;

(b)a party did not receive notice of the proceedings leading to the decision;

(c)the decision was made in the absence of a party;

(d)new evidence has become available since the making of the decision provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or

(e)the interests of justice require such a review.

(2) A tribunal may not review a decision of its own motion unless it is the tribunal which issued the decision.

(3) A tribunal may only review a decision of its own motion if –

(a)it has sent notice to each of the parties explaining in summary form the ground upon which and reasons why it is proposed to review the decision and giving them an opportunity to show cause why there should be no review; and

(b)such notice has been sent on or after the date of the hearing, but within 14 days of the date on which the decision was sent to the parties.

(4) An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary on or after the date of the hearing, but within 14 days of the date on which the decision was sent to the parties. Such application must be in writing and must state the grounds in full.

(5) An application for the purposes of paragraph (1) may be refused by the President, the Vice-President or by the chairman of the tribunal which decided the case if in his opinion it has no reasonable prospect of success and he shall state the reasons for his opinion.

(6) If such an application is not refused under paragraph (5) it shall be heard by the tribunal which decided the case; or –

(a)where it is not practicable for it to be heard by that tribunal; or

(b)where the decision was made by a chairman acting alone under rule 10(5),

by a tribunal appointed by either the President or the Vice-President.

(7) On reviewing its decision a tribunal may confirm the decision, or vary or revoke the decision; and if it revokes the decision, the tribunal shall order a re-hearing before either the same or a differently constituted tribunal.

Costs

9.—(1) A tribunal may make an order that a party shall pay to the other party either a specified sum being the sum agreed between them in respect of the costs of or in connection with an appeal incurred by that other party or, in default of agreement, the amount of those costs as assessed by way of detailed assessment.

(2) Where the tribunal has on the application of a party postponed the day or time fixed for or adjourned the hearing, the tribunal may make an order of the kind mentioned in paragraph (1), against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.

(3) Any costs required by an order under this rule to be assessed by way of detailed assessment may be so assessed in the county court according to such of the scales prescribed by the county court rules for proceedings in the county court as shall be directed by the order.

Miscellaneous powers

10.—(1) Subject to the provisions of these Rules, a tribunal may regulate its own procedure.

(2) A tribunal may –

(a)make any necessary amendments to the description of a party in the Register and in other documents relating to the appeal;

(b)if the appellant shall at any time give notice of the abandonment of his appeal, dismiss the appeal;

(c)if the parties agree in writing upon the terms of a decision to be made by the tribunal, decide accordingly;

(d)on the application of the Commission, or of its own motion, order to be struck out any notice of appeal for want of prosecution: Provided that before making any such order the tribunal shall send notice to the appellant giving him an opportunity to show cause why such an order should not be made.

(3) Subject to rule 3(3), a tribunal may, if it thinks fit, before granting an application under rule 3 or 11 require the party making the application to give notice of it to the other party. The notice shall give particulars of the application and indicate the address to which and the time within which any objection to the application shall be made being an address and time specified for the purposes of the application by the tribunal.

(4) A chairman may postpone the day or time fixed for, or adjourn, any hearing and vary any such postponement or adjournment.

(5) Any act required or authorised by these Rules to be done by a tribunal may be done by the President, the Vice-President or by a chairman except –

(a)the hearing of an appeal under rule 5;

(b)an act required or authorised to be done by rule 6 or 7 which the rule implies is to be done by the tribunal which is hearing or has heard the appeal;

(c)the review of a decision under rule 8(1), and the confirmation, variation or revocation of a decision, and ordering of a re-hearing, under rule 8(7).

(6) Any act required or authorised by rule 11 and paragraph (4) to be done by a chairman may be done by a tribunal or on the direction of the President, the Vice-President or a chairman.

(7) Rule 9 shall apply to an order dismissing proceedings under paragraph (2)(b).

Extension of time and directions

11.—(1) A chairman may, on the application of a party or of his own motion, extend the time for doing any act appointed by or under these Rules (including this rule) and may do so whether or not the time so appointed has expired.

(2) A tribunal may at any time, on the application of a party or of its own motion, give such directions on any matter arising in connection with the proceedings as appear to the tribunal to be appropriate.

(3) An application under paragraph (1) or (2) shall be made by presenting to the Secretary a notice of application, which shall state the title of the proceedings and shall set out the grounds of the application.

(4) The Secretary shall give notice to each of the parties of any extension of time granted or any directions given under this rule.

Devolution issues

12.—(1) In any proceedings in which a devolution issue arises, the Secretary shall as soon as reasonably practicable by notice inform each of the relevant authorities thereof (unless the person to whom notice would be given is a party to the proceedings) and shall at the same time –

(a)send a copy of the notice to the parties to the proceedings; and

(b)send each of the relevant authorities a copy of the notice of appeal.

(2) A person to whom notice is given in pursuance of paragraph (1) may within 14 days of receipt thereof by notice to the Secretary take part as a party in the proceedings, so far as they relate to the devolution issue. The Secretary shall send a copy of the notice to the other parties to the proceedings.

Notices, etc.

13.—(1) Any notice given under these Rules shall be in writing.

(2) All notices and documents required by these Rules to be presented to the Secretary may be presented at the Office of the Tribunals or such other office as may be notified by the Secretary to the parties.

(3) All notices and documents required or authorised by these Rules to be sent or given to any person hereinafter mentioned may be sent through a document exchange in accordance with paragraph (5), or by ordinary post (subject to paragraph (6)) or delivered to or at –

(a)in the case of a notice or document directed to the Department in proceedings to which it is not a party, the offices of the Department for Employment and Learning at Adelaide House, 39/49 Adelaide Street, Belfast BT2 8FD, or such other office as may be notified by the Department;

(b)in the case of a notice or document directed to the Attorney General for Northern Ireland pursuant to rule 12, the Attorney General’s Chambers, 9 Buckingham Gate, London, SW1E 7JP;

(c)in the case of a notice or document directed to a court, the office of the clerk of the court;

(d)in the case of a notice or document directed to a party –

(i)the address specified in his originating application or notice of appearance to which notices and documents are to be sent, or in a notice under paragraph (4); or

(ii)if no such address has been specified, or if a notice sent to such an address has been returned, to any other known address or place of business in the United Kingdom or, if the party is a corporate body, the body’s registered or principal office in the United Kingdom, or, in any case, such address or place outside the United Kingdom as the President or the Vice-President may allow;

(e)in the case of a notice or document directed to any person (other than a person specified in the foregoing provisions of this paragraph), his address or place of business in the United Kingdom or, if the person is a corporate body, the body’s registered or principal office in the United Kingdom;

and a notice or document sent or given to the authorised representative of a party shall be deemed to have been sent or given to that party.

(4) A party may at any time by notice to the Secretary and to the other party change the address to which notices and documents are to be sent.

(5) Where –

(a)the proper address for service of any notice or document required or authorised by these Rules to be sent or given to any person includes a numbered box at a document exchange; or

(b)there is inscribed on the writing paper of the party on whom the notice or document is to be served (where such party acts in person) or on the writing paper of his solicitor (where such party acts by a solicitor) a document exchange box number, and such a party or his solicitor (as the case may be) has not indicated in writing to the party serving the notice or document that he is unwilling to accept service through a document exchange,

service of the notice or document may be effected by leaving it addressed to that numbered box at that document exchange or at a document exchange which transmits documents every business day to that exchange; and any notice or document which is left at a document exchange in accordance with this paragraph shall, unless the contrary is proved, be deemed to have been served on the second business day following the day on which it is left.

(6) In any case he considers appropriate, the President or the Vice-President may direct that there shall be substituted service in such manner as he may deem fit.