The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005

Citation, commencement and revocation

1.—(1) These Regulations may be cited as the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and the Rules of Procedure contained in Schedules 1, 2, 3, 4, 5 and 6 to these Regulations may be referred to, respectively as –

(a)the Industrial Tribunals Rules of Procedure;

(b)the Industrial Tribunals (National Security) Rules of Procedure;

(c)the Industrial Tribunals (Equal Value) Rules of Procedure;

(d)the Industrial Tribunals (Levy Appeals) Rules of Procedure;

(e)the Industrial Tribunals (Health and Safety – Appeals against Improvement and Prohibition Notices) Rules of Procedure; and

(f)the Industrial Tribunals (Non-Discrimination Notices Appeals) Rules of Procedure.

(2) These Regulations shall come into operation on 3rd April 2005.

(3) Subject to the savings in regulation 15, the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004(1) and the Industrial Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations (Northern Ireland) 2004(2) are revoked.

Interpretation

2.—(1) In these Regulations and in Schedules 1, 2, 3, 4, 5 and 6 –

“the Sex Discrimination Order” means the Sex Discrimination (Northern Ireland) Order 1976(3);

“the Disability Discrimination Act” means the Disability Discrimination Act 1995(4);

“the Industrial Tribunals Order” means the Industrial Tribunals (Northern Ireland) Order 1996(5);

“the Race Relations Order” means the Race Relations (Northern Ireland) Order 1997(6);

“the Employment Order” means the Employment (Northern Ireland) Order 2003(7);

“the Sexual Orientation Regulations” means the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003(8);

“allowances” means any allowances payable under Article 7(2)(c) or (3) of the Industrial Tribunals Order;

“chairman” means the President, the Vice-President or a member of the panel of chairmen appointed in accordance with regulation 4(1)(a), or, for the purposes of national security proceedings, a member of the panel referred to in regulation 6 selected in accordance with regulation 7(a), and in relation to particular proceedings it means the chairman to whom the proceedings have been referred by the President or the Vice-President;

“compromise agreement” means an agreement to refrain from continuing proceedings where the agreement meets the conditions in Article 245(3)(9) of the Employment Rights Order;

“constructive dismissal” has the meaning set out in Article 127(1)(c) of the Employment Rights Order;

“decision” includes a default judgement except when referred to in rules 34 to 36 of Schedule 1;

“document exchange” means any document exchange for the time being approved by the Lord Chancellor;

“electronic communication” has the meaning given to it by section 15(1) of the Electronic Communications Act 2000(10);

“excluded person” means, in relation to any proceedings, a person who has been excluded from all or part of the proceedings by virtue of –

“hearing” means a case management discussion under rule 17, a pre-hearing review under rule 18, a hearing under rule 26 or a review hearing under rule 33 or 36 (in each case as mentioned in Schedule 1) or a sitting of a chairman or a tribunal duly constituted for the purpose of receiving evidence, hearing addresses and witnesses or doing anything lawful to enable the chairman or tribunal to reach a decision on any question;

“legally represented” has the meaning set out in rule 38(5) of Schedule 1;

“misconceived” includes having no reasonable prospect of success;

“national security proceedings” means proceedings in relation to which a direction is given under rule 54(1) of Schedule 1, or an order is made under rule 54(2) of that Schedule;

“Office of the Tribunals” means the Office of the Industrial Tribunals and the Fair Employment Tribunal;

“old Regulations” means the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004;

“order” means an order, which may be issued in relation to interim matters, which may require a person to do or not to do something;

“panel of chairmen” means a panel referred to in regulation 4(1)(a);

“President” means the President of the Industrial Tribunals and the Fair Employment Tribunal or the person nominated by the Lord Chancellor under Article 82(6) of the Fair Employment and Treatment (Northern Ireland) Order 1998(11) to discharge for the time being the functions of the President;

“Register” means the Register of claims, appeals, applications, decisions and written reasons kept in accordance with regulation 13;

“the relevant authorities” means the persons mentioned in paragraph 5 of Schedule 10 to the Northern Ireland Act 1998;

“rule” means a rule of procedure contained in the Schedules;

“Secretary” means a person for the time being appointed to act as the Secretary of the Office of the Tribunals;

“special advocate” means a person appointed in accordance with rule 8 of Schedule 2;

“tribunal” means an industrial tribunal and in relation to any proceedings means the tribunal to which the proceedings have been referred by the President or the Vice-President;

“Vice-President” means the Vice-President of the Industrial Tribunals and the Fair Employment Tribunal or the person nominated by the Lord Chancellor under Article 82(6) of the Fair Employment and Treatment (Northern Ireland) Order 1998 to discharge for the time being the functions of the Vice-President;

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

(2) In these Regulations, in so far as they relate to the rules in Schedules 1, 2 and 3, and in those Schedules –

“the Equal Pay Act” means the Equal Pay Act (Northern Ireland) 1970(12);

“comparator” means the person of the opposite sex to the claimant in relation to whom the claimant claims that his work is of equal value as described in section 1(2)(c) of the Equal Pay Act(13);

“equal value claim” means a claim by a claimant which rests upon entitlement to the benefit of an equality clause by virtue of the operation of section 1(2)(c) of the Equal Pay Act;

“the facts relating to the question” has the meaning in rule 6(3) of Schedule 3;

“independent expert” means a member of the panel of independent experts within the meaning of section 2A(4) of the Equal Pay Act(14);

“indicative timetable” means the indicative timetable set out in the Annex to Schedule 3;

“the question” means whether the claimant’s work is of equal value to that of the comparator as described in section 1(2)(c) of the Equal Pay Act;

“report” means a report required by a tribunal or chairman to be prepared by an expert, pursuant to section 2A(1)(b) of the Equal Pay Act.

(3) In these Regulations, in so far as they relate to the rules in Schedule 4, and in that Schedule –

“the Industrial Training Order” means the Industrial Training (Northern Ireland) Order 1984(15);

“Board” means, in relation to an appeal, the Construction Industry Training Board(16);

“levy” means a levy imposed under Article 23 of the Industrial Training Order;

“levy appeal” means an appeal against an assessment to a levy;

“respondent” means the Board.

(4) In these Regulations, in so far as they relate to the rules in Schedule 5, and in that Schedule –

“the Health and Safety Order” means the Health and Safety at Work (Northern Ireland) Order 1978(17);

“improvement notice” means a notice under Article 23 of the Health and Safety Order;

“inspector” means a person appointed under Article 21(1) of the Health and Safety Order;

“prohibition notice” means a notice under Article 24 of the Health and Safety Order;

“respondent” means the inspector who issued the improvement notice or prohibition notice which is the subject of the appeal.

(5) In these Regulations, in so far as they relate to the rules in Schedule 6, and in that Schedule –

“the Disability Order” means the Equality (Disability, etc.) (Northern Ireland) Order 2000(18);

“appeal”, unless the context requires otherwise, means an appeal referred to in Article 68(1)(a) of the Sex Discrimination Order, in Article 56(1)(a) of the Race Relations Order or, as the case may be, in paragraph 10(1) and (2)(a) of Schedule 1 to the Disability Order;

“non-discrimination notice” means a notice under Article 67 of the Sex Discrimination Order, under Article 55 of the Race Relations Order or, as the case may be, under Article 6 of the Disability Order;

“respondent” means the Equality Commission for Northern Ireland established under section 73 of the Northern Ireland Act 1998(19).

Overriding objective

3.—(1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and chairmen to deal with cases justly.

(2) Dealing with a case 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 or importance of the issues;

(c)ensuring that it is dealt with expeditiously and fairly; and

(d)saving expense.

(3) A tribunal or chairman shall seek to give effect to the overriding objective when it or he –

(a)exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6; or

(b)interprets these Regulations or any rule in Schedules 1, 2, 3, 4, 5 and 6.

(4) The parties shall assist the tribunal or the chairman to further the overriding objective.

Panels of members of tribunals – general

4.—(1) There shall be three panels of members of industrial tribunals, namely –

(a)a panel of full-time and part-time chairmen appointed by the Department consisting of persons –

(i)having a seven year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990(20);

(ii)being an advocate or solicitor admitted in Scotland of at least seven years' standing; or

(iii)being a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least seven years' standing;

(b)a panel of persons appointed by the Department after consultation with such organisations or associations of organisations representative of employees as it sees fit; and

(c)a panel of persons appointed by the Department after consultation with such organisations or associations of organisations representative of employers as it sees fit.

(2) Members of the panels constituted under these Regulations shall hold and vacate office under the terms of the instrument under which they are appointed but may resign their office by notice in writing to the Department; and any such member who ceases to hold office shall be eligible for reappointment.

(3) The President or the Vice-President may establish further specialist panels of chairmen and persons referred to in paragraph (1)(b) and (c) and may select persons from such specialist panels in order to deal with proceedings in which particular specialist knowledge would be beneficial.

Composition of tribunals – general

5.—(1) For each hearing, the President or the Vice-President shall select a chairman, who shall, subject to regulation 7, be the President, the Vice-President or a member of the panel of chairmen, and the President or the Vice-President may select himself.

(2) In any proceedings which are to be determined by a tribunal comprising a chairman and two other members, the President or the Vice-President shall, subject to regulation 7, select one of those other members from the panel of persons appointed by the Department under regulation 4(1)(b) and the other from the panel of persons appointed under regulation 4(1)(c).

(3) In any proceedings which are to be determined by a tribunal whose composition is described in paragraph (2) or, as the case may be, regulation 7(b), those proceedings may, with the consent of the parties, be heard and determined in the absence of any one member other than the chairman.

(4) The President or the Vice-President may at any time select from the appropriate panel another person in substitution for the chairman or other member of the tribunal previously selected to hear any proceedings before a tribunal or chairman.

Panels of members of tribunals – national security proceedings

6.  In relation to national security proceedings, the President shall –

(a)select a panel of persons from the panel of chairmen to act as chairmen in such cases; and

(b)select –

(i)a panel of persons from the panel referred to in regulation 4(1)(b) as persons suitable to act as members in such cases; and

(ii)a panel of persons from the panel referred to in regulation 4(1)(c) as persons suitable to act as members in such cases.

Composition of tribunals – national security proceedings

7.  In relation to national security proceedings –

(a)the President or the Vice-President shall select a chairman, who shall be the President, the Vice-President or a member of the panel selected in accordance with regulation 6(a), and the President or the Vice-President may select himself; and

(b)in any such proceedings which are to be determined by a tribunal comprising a chairman and two other members, the President or the Vice-President shall select one of those other members from the panel selected in accordance with regulation 6(b)(i) and the other from the panel selected in accordance with regulation 6(b)(ii).

Modification of Article 6 of the Industrial Tribunals Order (national security proceedings)

8.—(1) For the purposes of national security proceedings Article 6(21) of the Industrial Tribunals Order shall be modified in accordance with paragraphs (2) to (4).

(2) In Article 6(1)(a), for the words “in accordance with regulations made under Article 3(1)” substitute the words “in accordance with regulation 7(a) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005”.

(3) In Article 6(1)(b), for the words “in accordance with regulations so made” substitute the words “in accordance with regulation 7(b) of those Regulations”.

(4) In Article 6(5), for the words “in accordance with regulations made under Article 3(1)” substitute the words “in accordance with regulation 6(a) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005”.

Practice directions

9.—(1) The President may make practice directions about the procedure of industrial tribunals, including practice directions about the exercise by tribunals or chairmen of powers under these Regulations.

(2) The power of the President to make practice directions under paragraph (1) includes power –

(a)to vary or revoke practice directions;

(b)to make different provision for different cases, including different provision for specific types of proceedings.

(3) The President shall publish a practice direction made under paragraph (1), and any revocation or variation of it, in such manner as he considers appropriate for bringing it to the attention of the persons to whom it is addressed.

Power to prescribe

10.—(1) The Department may prescribe –

(a)one or more versions of a form, one of which shall be used by all claimants for the purpose of instituting proceedings in an industrial tribunal (“claim form”) except any claim or proceedings listed in paragraph (3);

(b)one or more versions of a form, one of which shall be used by all respondents to a claim for the purpose of responding to a claim before an industrial tribunal (“response form”) except respondents to a claim or proceedings listed in paragraph (3); and

(c)that the provision of certain information and answering of certain questions in a claim form or in a response form is mandatory in all proceedings save those listed in paragraph (3).

(2) The Department shall publish the forms and matters prescribed pursuant to paragraph (1) in such manner as it considers appropriate in order to bring them to the attention of potential claimants, respondents and their advisers.

(3) The proceedings referred to in paragraph (1) are –

(a)those referred to an industrial tribunal by a court;

(b)proceedings to which any of Schedules 4 to 6 apply or;

(c)proceedings brought under any of the following statutory provisions –

(i)sections 19, 20 or 22 of the National Minimum Wage Act 1998(22);

(ii)Article 43 of the Employment Rights Order where the proceedings are brought by the employer.

Calculation of time limits

11.—(1) Any period of time for doing any act required or permitted to be done under any of the rules in Schedules 1, 2, 3, 4, 5 and 6, or under any decision or order of a tribunal or a chairman, shall be calculated in accordance with paragraphs (2) to (6).

(2) 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 respondent is sent a copy of a claim on 1st May. He must present a response to the Office of the Tribunals within 28 days of the date on which he was sent the copy. The last day for presentation of the response is 29th May.

(3) 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 submit representations in writing for consideration by a tribunal at a hearing, he must submit them not less than 7 days before the hearing. If the hearing is fixed for 8th May, the representations must be submitted no later than 1st May.

(4) Where the tribunal or a chairman gives any decision or order which imposes a time limit for doing any act, the last date for compliance shall, wherever practicable, be expressed as a calendar date.

(5) In rule 14(4) of Schedule 1 the requirement to send the notice of hearing to the parties not less than 14 days before the date fixed for the hearing shall not be construed as a requirement for service of the notice to have been effected not less than 14 days before the hearing date, but as a requirement for the notice to have been placed in the post not less than 14 days before that date. For example, a hearing is fixed for 15th May. The last day on which the notice may be placed in the post is 1st May.

(6) Where any act must or may have been done within a certain number of days of a document being sent to a person by the Secretary, the date when the document was sent shall, unless the contrary is proved, be regarded as the date on the letter from the Secretary which accompanied the document. For example, a respondent must present his response to a claim to the Office of the Tribunals within 28 days of the date on which he was sent a copy of the claim. If the letter from the Secretary sending him a copy of the claim is dated 1st May, the last day for presentation of the response is 29th May.

Application of Schedules 1-6 to proceedings

12.—(1) Subject to paragraphs (2) and (3), the rules in Schedule 1 shall apply in relation to all proceedings before an industrial tribunal except where separate rules of procedure made under the provisions of any statutory provision are applicable.

(2) In proceedings to which the rules in Schedule 1 apply and in which any power conferred on the Secretary of State, the tribunal or a chairman by rule 54 (national security proceedings) of Schedule 1 is exercised, Schedule 1 shall be modified in accordance with Schedule 2.

(3) The rules in Schedules 3, 4, 5 and 6 shall apply to modify the rules in Schedule 1 in relation to proceedings before a tribunal which consist, respectively, of –

(a)an equal value claim (as defined in regulation 2(2));

(b)an appeal by a person assessed to levy imposed under a levy order made under Article 23 of the Industrial Training Order;

(c)an appeal against an improvement or prohibition notice under Article 26 of the Health and Safety Order(23); and

(d)an appeal against a non-discrimination notice under Article 67 of the Sex Discrimination Order, Article 55 of the Race Relations Order or paragraph 10 of Schedule 1 to the Equality (Disability, etc.) (Northern Ireland) Order 2000.

Register

13.—(1) The Secretary shall maintain a Register which shall be open to inspection by any person without charge at all reasonable hours.

(2) The Register shall contain –

(a)details of all claims in accordance with rule 2(2)(g) of Schedule 1;

(b)details of appeals in accordance with rule 6(a) of Schedule 4, rule 4(a) of Schedule 5 and rule 3(a) of Schedule 6;

(c)the fact of applications in accordance with rule 5 of Schedule 5; and

(d)a copy of all decisions and any written reasons issued by any tribunal or chairman which are required to be entered in the Register in accordance with the rules in Schedules 1 to 6.

(3) The Register, or any part of it, may be kept by means of a computer.

Proof of decisions of tribunals

14.  The production in any proceedings in any court of a document purporting to be certified by the Secretary to be a true copy of an entry of a decision in the Register shall, unless the contrary is proved, be sufficient evidence of the document and of the facts stated therein.

Transitional provisions

15.—(1) These Regulations and Schedules 1 to 6 shall apply in relation to all proceedings where those proceedings were commenced on or after 3rd April 2005.

(2) These Regulations and Schedules 1 and 2 (with the exception of rules 1 to 3 and 38 to 48 of Schedule 1) shall apply to proceedings –

(a)which were commenced prior to 3rd April 2005; and

(b)to which Schedule 1 to the old Regulations applied;

provided that a copy of the originating application was not sent to the respondent prior to 3rd April 2005.

(3) In relation to the proceedings described in paragraph (2), the following provisions of Schedule 1 to the old Regulations shall continue to apply –

(a)rule 1 (originating application);

(b)rule 2 (action upon receipt of originating application) with the exception of paragraphs (2), (4) and (5) of that rule; and

(c)rule 14 (costs).

(4) In relation to proceedings described in paragraph (2) but where a copy of the originating application was sent to the respondent prior to 3rd April 2005, Schedules 1 and 2 to these Regulations shall apply with the exception of rules 1 to 9, 21 to 24, 33 and 38 to 48 of Schedule 1 and rules 2 to 5 of Schedule 2.

(5) In relation to proceedings described in paragraph (4), the following provisions of the old Regulations shall continue to apply –

(a)in Schedule 1 –

(i)rule 1 (originating application);

(ii)rule 2 (action upon receipt of originating application) with the exception of paragraphs (2), (4) and (5) of that rule;

(iii)rule 3 (appearance by respondent);

(iv)rule 8 (national security);

(v)rule 14 (costs); and

(b)rule 1 of Schedule 2.

(6) In relation to proceedings –

(a)which were commenced prior to 3rd April 2005;

(b)to which Schedule 3 to the old Regulations applied; and

(c)in which the tribunal has not, prior to 3rd April 2005, required a member of the panel of independent experts to prepare a report under section 2A(1)(b) of the Equal Pay Act;

these Regulations and rules 1 to 12 of Schedule 3, with the exception of rule 3(3)(a), shall apply.

(7) In relation to proceedings –

(a)which were commenced prior to 3rd April 2005;

(b)to which Schedule 3 to the old Regulations applied; and

(c)in which the tribunal has, prior to 3rd April 2005, required a member of the panel of independent experts to prepare a report under section 2A(1)(b) of the Equal Pay Act;

Schedule 3 to the old Regulations shall continue to apply.

(8) In relation to proceedings described in paragraph (7), the following rules of Schedule 3 shall also apply and shall take precedence over any conflicting provision in Schedule 3 to the old Regulations, namely rules 2, 10(2), 10(4), 11, 12(1) and 12(3).

(9) Rule 13 of Schedule 3 shall apply to all proceedings to which, in accordance with this regulation, rule 10 of Schedule 2 applies.

(10) In relation to proceedings commenced prior to 3rd April 2005 and to which Schedule 4, 5 or 6 to the old Regulations applied, the provisions of those schedules shall continue to apply to such proceedings.