PART IF101Employment Tribunals
Introductory
1F1Employment tribunals
1
The Secretary of State may by regulations make provision for the establishment of tribunals to be known as F1employment tribunals.
2
Jurisdiction
C122 Enactments conferring jurisdiction on F3employment tribunals.
F3Employment tribunals shall exercise the jurisdiction conferred on them by or by virtue of this Act or any other Act, whether passed before or after this Act.
C13 Power to confer further jurisdiction on F4employment tribunals.
1
The appropriate Minister may by order provide that proceedings in respect of—
a
any claim to which this section applies, or
b
any claim to which this section applies and which is of a description specified in the order,
may, subject to such exceptions (if any) as may be so specified, be brought before an F4employment tribunal.
2
Subject to subsection (3), this section applies to—
a
a claim for damages for breach of a contract of employment or other contract connected with employment,
b
a claim for a sum due under such a contract, and
c
a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract,
if the claim is such that a court in England and Wales or Scotland would under the law for the time being in force have jurisdiction to hear and determine an action in respect of the claim.
3
This section does not apply to a claim for damages, or for a sum due, in respect of personal injuries.
4
Any jurisdiction conferred on an F4employment tribunal by virtue of this section in respect of any claim is exercisable concurrently with any court in England and Wales or in Scotland which has jurisdiction to hear and determine an action in respect of the claim.
5
In this section—
“appropriate Minister”, as respects a claim in respect of which an action could be heard and determined by a court in England and Wales, means the Lord Chancellor and, as respects a claim in respect of which an action could be heard and determined by a court in Scotland, means the Lord Advocate, and
“personal injuries” includes any disease and any impairment of a person’s physical or mental condition.
6
In this section a reference to breach of a contract includes a reference to breach of—
a
a term implied in a contract by or under any enactment or otherwise,
b
a term of a contract as modified by or under any enactment or otherwise, and
c
a term which, although not contained in a contract, is incorporated in the contract by another term of the contract.
Membership etc.
3AF28Meaning of “Employment Judge”
A person who is a member of a panel of chairmen of employment tribunals which is appointed in accordance with regulations under section 1(1) may be referred to as an Employment Judge.
4 Composition of a tribunal.
C21
Subject to the following provisions of this section F8and to section 7(3A), proceedings before an F9employment tribunal shall be heard by—
C3a
the person who, in accordance with regulations made under section 1(1), is the chairman, and
C4b
two other members, or (with the consent of the parties) one other member, selected as the other members (or member) in accordance with regulations so made.
2
Subject to subsection (5), the proceedings specified in subsection (3) shall be heard by the person mentioned in subsection (1)(a) alone F5or alone by any Employment Judge who, in accordance with regulations made under section 1(1), is a member of the tribunal .
3
The proceedings referred to in subsection (2) are—
a
b
proceedings on a complaint under section 126 of the M2Pension Schemes Act 1993,
c
proceedings F13on a reference under section 11, 163 or 170 of the Employment Rights Act 1996, on a complaint under section 23 F14, 34 F246, 111 or 188 of F15that Act, on a complaint under section 70(1) of that Act relating to section 64 of that Act, or on an application under section 128, 131 or 132 of that F16Act or for an appointment under section 206(4) of that Act,
F17ca
proceedings on a complaint under F6regulation 15(10) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ,
F18cc
proceedings on a complaint under section 11 of the National Minimum Wage Act 1998,
F208ce
proceedings on a complaint under regulation 30 of the Working Time Regulations 1998 relating to an amount due under regulation 14(2) or 16(1) of those Regulations,
cf
proceedings on a complaint under regulation 18 of the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 relating to an amount due under regulation 11 of those Regulations,
cg
proceedings on a complaint under regulation 18 of the Civil Aviation (Working Time) Regulations 2004 relating to an amount due under regulation 4 of those Regulations,
ch
proceedings on a complaint under regulation 19 of the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 relating to an amount due under regulation 11 of those Regulations,
d
proceedings in respect of which an F9employment tribunal has jurisdiction by virtue of section 3 of this Act,
e
proceedings in which the parties have given their written consent to the proceedings being heard in accordance with subsection (2) (whether or not they have subsequently withdrawn it),
F19f
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and
g
proceedings in which the person (or, where more than one, each of the persons) against whom the proceedings are brought does not, or has ceased to, contest the case.
4
The Secretary of State F7and the Lord Chancellor, acting jointly, may by order amend the provisions of subsection (3).
C55
Proceedings specified in subsection (3) shall be heard in accordance with subsection (1) if a person who, in accordance with regulations made under section 1(1), may be the chairman of an F20employment tribunal, having regard to—
a
whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with subsection (1),
b
whether there is a likelihood of an issue of law arising which would make it desirable for the proceedings to be heard in accordance with subsection (2),
c
any views of any of the parties as to whether or not the proceedings ought to be heard in accordance with either of those subsections, and
d
whether there are other proceedings which might be heard concurrently but which are not proceedings specified in subsection (3),
decides at any stage of the proceedings that the proceedings are to be heard in accordance with subsection (1).
6
Where (in accordance with the following provisions of this Part) the Secretary of State makes F9employment tribunal procedure regulations, the regulations may provide that F21any act which is required or authorised by the regulations to be done by an employment tribunal and is of a description specified by the regulations for the purposes of this subsection may be done by the person mentioned in subsection (1)(a) alone F5or alone by any Employment Judge who, in accordance with regulations made under section 1(1), is a member of the tribunal .
F226A
Subsection (6) in particular enables employment tribunal procedure regulations to provide that—
a
the determination of proceedings in accordance with regulations under section 7(3A), (3B) or (3C)(a),
b
the carrying-out of pre-hearing reviews in accordance with regulations under subsection (1) of section 9 (including the exercise of powers in connection with such reviews in accordance with regulations under paragraph (b) of that subsection), or
c
the hearing and determination of a preliminary issue in accordance with regulations under section 9(4) (where it involves hearing witnesses other than the parties or their representatives as well as where, in accordance with regulations under section 7(3C)(b), it does not),
may be done by the person mentioned in subsection (1)(a) alone F5or alone by any Employment Judge who, in accordance with regulations made under section 1(1), is a member of the tribunal .
F236B
Employment tribunal procedure regulations may (subject to subsection (6C)) also provide that any act which—
a
by virtue of subsection (6) may be done by the person mentioned in subsection (1)(a) alone F5or alone by any Employment Judge who, in accordance with regulations made under section 1(1), is a member of the tribunal , and
b
is of a description specified by the regulations for the purposes of this subsection,
may be done by a person appointed as a legal officer in accordance with regulations under section 1(1); and any act so done shall be treated as done by an employment tribunal.
6C
But regulations under subsection (6B) may not specify—
a
the determination of any proceedings, other than proceedings in which the parties have agreed the terms of the determination or in which the person bringing the proceedings has given notice of the withdrawal of the case, or
b
the carrying-out of pre-hearing reviews in accordance with regulations under section 9(1).
F2556D
A person appointed as a legal officer in accordance with regulations under section 1(1) may determine proceedings in respect of which an employment tribunal has jurisdiction, or make a decision falling to be made in the course of such proceedings, if—
a
the proceedings are of a description specified in an order under this subsection made by the Secretary of State and the Lord Chancellor acting jointly, and
b
all the parties to the proceedings consent in writing;
and any determination or decision made under this subsection shall be treated as made by an employment tribunal.
7
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5 Remuneration, fees and allowances.
1
The Secretary of State may pay to—
a
the F24President of the Employment Tribunals (England and Wales),
F26c
any person who is an Employment Judge on a full-time basis, and
F27d
any person who is a legal officer appointed in accordance with such regulations,
such remuneration as he may with the consent of the Treasury determine.
2
The Secretary of State may pay to—
a
members of F24employment tribunals,
b
any assessors appointed for the purposes of proceedings before F24employment tribunals, and
c
any persons required for the purposes of section F239131(2) of the Equality Act 2010 to prepare reports,
such fees and allowances as he may with the consent of the Treasury determine.
3
The Secretary of State may pay to any other persons such allowances as he may with the consent of the Treasury determine for the purposes of, or in connection with, their attendance at F24employment tribunals.
5AF29Training etc.
The Senior President of Tribunals is responsible, within the resources made available by the Lord Chancellor, for the maintenance of appropriate arrangements for the training, guidance and welfare of members of panels of members of employment tribunals (in their capacities as members of such panels, whether or not panels of F261 Employment Judges ).
5BMembers of employment tribunals: removal from office
1
Any power by which the President of the Employment Tribunals (England and Wales) may be removed from that office may be exercised only with the concurrence of the Lord Chief Justice of England and Wales.
2
Any power by which the President of the Employment Tribunals (Scotland) may be removed from that office may be exercised only with the concurrence of the Lord President of the Court of Session.
3
Any power by which a member of a panel may be removed from membership of the panel—
a
may, if the person exercises functions wholly or mainly in Scotland, be exercised only with the concurrence of the Lord President of the Court of Session;
b
may, if paragraph (a) does not apply, be exercised only with the concurrence of the Lord Chief Justice of England and Wales.
4
In subsection (3) “panel” means—
a
a panel of F260 Employment Judges , or
b
any other panel of members of employment tribunals,
which is appointed in accordance with regulations made under section 1(1).
5
The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
6
The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this section.
5COaths
1
Subsection (2) applies to a person (“the appointee”)—
a
who is appointed—
i
as President of the Employment Tribunals (England and Wales),
ii
as President of the Employment Tribunals (Scotland), or
iii
as a member of a panel (as defined in section 5B(4)), and
b
who has not previously taken the required oaths after accepting another office.
2
The appointee must take the required oaths before—
a
the Senior President of Tribunals, or
b
an eligible person who is nominated by the Senior President of Tribunals for the purpose of taking the oaths from the appointee.
3
If the appointee is a President or panel member appointed before the coming into force of this section, the requirement in subsection (2) applies in relation to the appointee from the coming into force of this section.
4
A person is eligible for the purposes of subsection (2)(b) if one or more of the following paragraphs applies to him—
a
he holds high judicial office (as defined in section 60(2) of the Constitutional Reform Act 2005);
b
he holds judicial office (as defined in section 109(4) of that Act);
c
he holds (in Scotland) the office of sheriff.
5
In this section “the required oaths” means—
a
the oath of allegiance, and
b
the judicial oath,
as set out in the Promissory Oaths Act 1868.
5DF265Judicial assistance
1
Subsection (2) applies where regulations under section 1(1) make provision for a relevant tribunal judge, or a relevant judge, to be able by virtue of his office to act as a member of a panel of members of employment tribunals.
2
The provision has effect only if—
a
the persons in relation to whom the provision operates have to be persons nominated for the purposes of the provision by the Senior President of Tribunals,
b
its operation in relation to a panel established for England and Wales in any particular case requires the consent of the President of Employment Tribunals (England and Wales),
c
its operation in relation to a panel established for Scotland in any particular case requires the consent of the President of Employment Tribunals (Scotland),
d
its operation as respects a particular relevant judge requires—
i
the consent of the relevant judge, and
ii
the appropriate consent (see subsection (3)), and
e
it operates as respects a relevant tribunal judge or a relevant judge only for the purpose of enabling him to act as a member of a panel of chairmen of employment tribunals.
3
In subsection (2)(d)(ii) “the appropriate consent” means—
a
the consent of the Lord Chief Justice of England and Wales where the relevant judge is—
i
an ordinary judge of the Court of Appeal in England and Wales,
ii
a puisne judge of the High Court in England and Wales,
iii
a circuit judge,
iv
a district judge in England and Wales, or
v
a District Judge (Magistrates' Courts);
b
the consent of the Lord President of the Court of Session where the relevant judge is—
i
a judge of the Court of Session, or
ii
a sheriff;
c
the consent of the Lord Chief Justice of Northern Ireland where the relevant judge is—
i
a Lord Justice of Appeal in Northern Ireland,
ii
a puisne judge of the High Court in Northern Ireland,
iii
a county court judge in Northern Ireland, or
iv
a district judge in Northern Ireland.
4
In this section—
a
“relevant tribunal judge” means—
i
a person who is a judge of the First-tier Tribunal by virtue of appointment under paragraph 1(1) of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007,
ii
a transferred-in judge of the First-tier Tribunal,
iii
a person who is a judge of the Upper Tribunal by virtue of appointment under paragraph 1(1) of Schedule 3 to that Act,
iv
a transferred-in judge of the Upper Tribunal,
v
a deputy judge of the Upper Tribunal, or
vi
a person who is the Chamber President of a chamber of the First-tier Tribunal, or of a chamber of the Upper Tribunal, and does not fall within any of sub-paragraphs (i) to (v);
b
“relevant judge” means a person who—
i
is an ordinary judge of the Court of Appeal in England and Wales (including the vice-president, if any, of either division of that Court),
ii
is a Lord Justice of Appeal in Northern Ireland,
iii
is a judge of the Court of Session,
iv
is a puisne judge of the High Court in England and Wales or Northern Ireland,
v
is a circuit judge,
vi
is a sheriff in Scotland,
vii
is a county court judge in Northern Ireland,
viii
is a district judge in England and Wales or Northern Ireland, or
ix
is a District Judge (Magistrates' Courts).
5
References in subsection (4)(b)(iii) to (ix) to office-holders do not include deputies or temporary office-holders.
Procedure
6 Conduct of hearings.
1
A person may appear before an F30employment tribunals in person or be represented by—
a
counsel or a solicitor,
b
a representative of a trade union or an employers’ association, or
c
any other person whom he desires to represent him.
2
C67F32Employment tribunal procedure regulations.
1
2
3
F32Employment tribunal procedure regulations may, in particular, include provision—
a
for determining by which tribunal any proceedings are to be determined,
b
for enabling an F32employment tribunal to hear and determine proceedings brought by virtue of section 3 concurrently with proceedings brought before the tribunal otherwise than by virtue of that section,
c
for treating the Secretary of State (either generally or in such circumstances as may be prescribed by the regulations) as a party to any proceedings before an F32employment tribunal (where he would not otherwise be a party to them) and entitling him to appear and to be heard accordingly,
d
for requiring persons to attend to give evidence and produce documents and for authorising the administration of oaths to witnesses,
e
for enabling an F32employment tribunal, on the application of any party to the proceedings before it or of its own motion, to order—
i
in England and Wales, such discovery or inspection of documents, or the furnishing of such further particulars, as might be ordered by a county court on application by a party to proceedings before it, or
ii
in Scotland, such recovery or inspection of documents as might be ordered by a sheriff,
f
for prescribing the procedure to be followed in any proceedings before an F32employment tribunal, including provision—
F33i
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F34ia
for postponing fixing a time and place for a hearing, or postponing a time fixed for a hearing, for such period as may be determined in accordance with the regulations for the purpose of giving an opportunity for the proceedings to be settled by way of conciliation and withdrawn, and
ii
for enabling an F32employment tribunal to review its decisions, and revoke or vary its orders and awards, in such circumstances as may be determined in accordance with the regulations,
g
for the appointment of one or more assessors for the purposes of any proceedings before an F32employment tribunal, where the proceedings are brought under an enactment which provides for one or more assessors to be appointed,
h
j
for the registration and proof of decisions, orders and awards of F32employment tribunals.
F353ZA
Employment tribunal procedure regulations may—
a
authorise the Secretary of State to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of instituting, or entering an appearance to, proceedings before employment tribunals,
b
authorise the Secretary of State to prescribe requirements in relation to documents to be supplied with any such form, and
c
make provision about the publication of anything prescribed under authority conferred by virtue of this subsection.
F36F373A
Employment tribunal procedure regulations may authorise the determination of proceedings without any hearing in such circumstances as the regulations may prescribe.
F2103AA
Employment tribunal procedure regulations under subsection (3A) may only authorise the determination of proceedings without any hearing in circumstances where—
a
all the parties to the proceedings consent in writing to the determination without a hearing, or
b
the person (or, where more than one, each of the persons) against whom the proceedings are brought—
i
has presented no response in the proceedings, or
ii
does not contest the case.
3AB
For the purposes of subsection (3AA)(b), a person does not present a response in the proceedings if he presents a response but, in accordance with provision made by the regulations, it is not accepted.
F363B
Employment tribunal procedure regulations may authorise the determination of proceedings without hearing anyone other than the person or persons by whom the proceedings are brought (or his or their representatives) where—
a
the person (or, where more than one, each of the persons) against whom the proceedings are brought has done nothing to contest the case, or
b
it appears from the application made by the person (or, where more than one, each of the persons) bringing the proceedings that he is not (or they are not) seeking any relief which an employment tribunal has power to give or that he is not (or they are not) entitled to any such relief.
F363C
Employment tribunal procedure regulations may authorise the determination of proceedings without hearing anyone other than the person or persons by whom, and the person or persons against whom, the proceedings are brought (or his or their representatives) where—
a
an employment tribunal is on undisputed facts bound by the decision of a court in another case to dismiss the case of the person or persons by whom, or of the person or persons against whom, the proceedings are brought, or
b
the proceedings relate only to a preliminary issue which may be heard and determined in accordance with regulations under section 9(4).
4
A person who without reasonable excuse fails to comply with—
a
any requirement imposed by virtue of subsection (3)(d) or (h), or
b
any requirement with respect to the discovery, recovery or inspection of documents imposed by virtue of subsection (3)(e), F38or
F38c
any requirement imposed by virtue of employment tribunal procedure regulations to give written answers for the purpose of facilitating the determination of proceedings as mentioned in subsection (3A), (3B) or (3C),
is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
5
Subject to any regulations under section 11(1)(a), F32employment tribunals procedure regulations may include provision authorising or requiring an F32employment tribunal, in circumstances specified in the regulations, to send notice or a copy of—
a
any document specified in the regulations which relates to any proceedings before the tribunal, or
b
any decision, order or award of the tribunal,
to any government department or other person or body so specified.
6
Where in accordance with F32employment tribunal procedure regulations an F32employment tribunal determines in the same proceedings—
a
a complaint presented under section 111 of the M3Employment Rights Act 1996, and
b
a question referred under section 163 of that Act,
subsection (2) of that section has no effect for the purposes of the proceedings in so far as they relate to the complaint under section 111.
7AF56 Practice directions
F196A1
The Senior President of Tribunals may make directions about the procedure of employment tribunals.
1
Employment tribunal procedure regulations may include provision—
a
enabling the F198territorial President to make directions about the procedure of employment tribunals, including directions about the exercise by tribunals of powers under such regulations,
b
for securing compliance with F199directions under subsection (A1) or paragraph (a) , and
c
about the publication of F200directions under subsection (A1) or paragraph (a) .
2
Employment tribunal procedure regulations may, instead of providing for any matter, refer to provision made or to be made about that matter by directions made F201under subsection (A1) or (1)(a) .
F1972A
The power under subsection (A1) includes—
a
power to vary or revoke directions made in exercise of the power, and
b
power to make different provision for different purposes (including different provision for different areas).
2B
Directions under subsection (A1) may not be made without the approval of the Lord Chancellor.
2C
Directions under subsection (1)(a) may not be made without the approval of—
a
the Senior President of Tribunals, and
b
the Lord Chancellor.
2D
Subsections (2B) and (2C)(b) do not apply to directions to the extent that they consist of guidance about any of the following—
a
the application or interpretation of the law;
b
the making of decisions by members of an employment tribunal.
2E
Subsections (2B) and (2C)(b) do not apply to directions to the extent that they consist of criteria for determining which members of employment tribunals may be selected to decide particular categories of matter; but the directions may, to that extent, be made only after consulting the Lord Chancellor.
3
In this section, references to the F202territorial President are to a person appointed in accordance with regulations under section 1(1) as—
a
President of the Employment Tribunals (England and Wales), or
b
President of the Employment Tribunals (Scotland).
7BF58Mediation
1
Employment tribunal procedure regulations may include provision enabling practice directions to provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings.
2
The provision that may be included in employment tribunal procedure regulations by virtue of subsection (1) includes provision for enabling practice directions to provide for a member to act as mediator in relation to disputed matters in a case even though the member has been selected to decide matters in the case.
3
Once a member has begun to act as mediator in relation to a disputed matter in a case that is the subject of proceedings, the member may decide matters in the case only with the consent of the parties.
4
Staff appointed under section 40(1) of the Tribunals, Courts and Enforcement Act 2007 (staff for employment and other tribunals) may, subject to their terms of appointment, act as mediators in relation to disputed matters in a case that is the subject of proceedings.
5
Before making a practice direction that makes provision in relation to mediation, the person making the direction must consult F258ACAS .
6
In this section—
“member” means a member of a panel of members of employment tribunals (whether or not a panel of F259 Employment Judges );
“practice direction” means a direction under section 7A;
“proceedings” means proceedings before an employment tribunal.
8 Procedure in contract cases.
1
Where in proceedings brought by virtue of section 3 an F39employment tribunal finds that the whole or part of a sum claimed in the proceedings is due, the tribunal shall order the respondent to the proceedings to pay the amount which it finds due.
2
An order under section 3 may provide that an F39employment tribunal shall not in proceedings in respect of a claim, or a number of claims relating to the same contract, order the payment of an amount exceeding such sum as may be specified in the order as the maximum amount which an F39employment tribunal may order to be paid in relation to a claim or in relation to a contract.
3
An order under section 3 may include provisions—
a
as to the manner in which and time within which proceedings are to be brought by virtue of that section, and
b
modifying any other enactment.
4
An order under that section may make different provision in relation to proceedings in respect of different descriptions of claims.
C79 Pre-hearing reviews and preliminary matters.
1
F40Employment tribunal procedure regulations may include provision—
a
for authorising the carrying-out by an F40employment tribunal of a preliminary consideration of any proceedings before it (a “pre-hearing review”), and
b
for enabling such powers to be exercised in connection with a pre-hearing review as may be prescribed by the regulations.
2
Such regulations may in particular include provision—
a
for authorising any tribunal carrying out a pre-hearing review under the regulations to make, in circumstances specified in the regulations, an order requiring a party to the proceedings in question, if he wishes to continue to participate in those proceedings, to pay a deposit of an amount not exceeding F245£1,000 , and
b
for prescribing—
i
the manner in which the amount of any such deposit is to be determined in any particular case,
ii
the consequences of non-payment of any such deposit, and
iii
the circumstances in which any such deposit, or any part of it, may be refunded to the party who paid it or be paid over to another party to the proceedings.
F412A
Regulations under subsection (1)(b), so far as relating to striking out, may not provide for striking out on a ground which does not apply outside a pre-hearing review.
3
The Secretary of State may from time to time by order substitute for the sum specified in subsection (2)(a) such other sum as is specified in the order.
4
10F43 National security.
1
If on a complaint under—
F44a
section 145A, 145B or 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (inducements and detriments in respect of trade union membership etc.),
b
section 111 of the Employment Rights Act 1996 (unfair dismissal),F217, or
c
regulation 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010 (detriment connected with prohibited list).
it is shown that the action complained of was taken for the purpose of safeguarding national security, the employment tribunal shall dismiss the complaint.
2
Employment tribunal procedure regulations may make provision about the composition of the tribunal (including provision disapplying or modifying section 4) for the purposes of proceedings in relation to which—
a
a direction is given under subsection (3), or
b
an order is made under subsection (4).
3
A direction may be given under this subsection by a Minister of the Crown if—
a
it relates to particular Crown employment proceedings, and
b
the Minister considers it expedient in the interests of national security.
4
An order may be made under this subsection by the President or a Regional Chairman in relation to particular proceedings if he considers it expedient in the interests of national security.
5
Employment tribunal procedure regulations may make provision enabling a Minister of the Crown, if he considers it expedient in the interests of national security—
a
to direct a tribunal to sit in private for all or part of particular Crown employment proceedings;
b
to direct a tribunal to exclude the applicant from all or part of particular Crown employment proceedings;
c
to direct a tribunal to exclude the applicant’s representatives from all or part of particular Crown employment proceedings;
d
to direct a tribunal to take steps to conceal the identity of a particular witness in particular Crown employment proceedings;
e
to direct a tribunal to take steps to keep secret all or part of the reasons for its decision in particular Crown employment proceedings.
F456
Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do in relation to particular proceedings before it anything of a kind which, by virtue of subsection (5), employment tribunal procedure regulations may enable a Minister of the Crown to direct a tribunal to do in relation to particular Crown employment proceedings.
7
In relation to cases where a person has been excluded by virtue of subsection (5)(b) or (c) or (6), employment tribunal procedure regulations may make provision—
a
for the appointment by the Attorney General, or by the Advocate General for Scotland, of a person to represent the interests of the applicant;
b
about the publication and registration of reasons for the tribunal’s decision;
c
permitting an excluded person to make a statement to the tribunal before the commencement of the proceedings, or the part of the proceedings, from which he is excluded.
8
Proceedings are Crown employment proceedings for the purposes of this section if the employment to which the complaint relates—
a
is Crown employment, or
b
is connected with the performance of functions on behalf of the Crown.
9
The reference in subsection (4) to the President or a Regional Chairman is to a person appointed in accordance with regulations under section 1(1) as—
a
a Regional Chairman,
b
President of the Employment Tribunals (England and Wales), or
c
President of the Employment Tribunals (Scotland).
F4610A Confidential information.
1
Employment tribunal procedure regulations may enable an employment tribunal to sit in private for the purpose of hearing evidence from any person which in the opinion of the tribunal is likely to consist of—
a
information which he could not disclose without contravening a prohibition imposed by or by virtue of any enactment,
b
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, or
c
information the disclosure of which would, for reasons other than its effect on negotiations with respect to any of the matters mentioned in section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, cause substantial injury to any undertaking of his or in which he works.
2
The reference in subsection (1)(c) to any undertaking of a person or in which he works shall be construed—
a
in relation to a person in Crown employment, as a reference to the national interest,
b
in relation to a person who is a relevant member of the House of Lords staff, as a reference to the national interest or (if the case so requires) the interests of the House of Lords, and
c
in relation to a person who is a relevant member of the House of Commons staff, as a reference to the national interest or (if the case so requires) the interests of the House of Commons.
F4710B Restriction of publicity in cases involving national security.
1
This section applies where a tribunal has been directed under section 10(5) or has determined under section 10(6)—
a
to take steps to conceal the identity of a particular witness, or
b
to take steps to keep secret all or part of the reasons for its decision.
2
It is an offence to publish—
a
anything likely to lead to the identification of the witness, or
b
the reasons for the tribunal’s decision or the part of its reasons which it is directed or has determined to keep secret.
3
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
4
Where a person is charged with an offence under this section it is a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication in question was of, or included, the matter in question.
5
Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
a
a director, manager, secretary or other similar officer of the body corporate, or
b
a person purporting to act in any such capacity,
he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
6
A reference in this section to publication includes a reference to inclusion in a programme which is included in a programme service, within the meaning of the M4Broadcasting Act 1990.
11 Restriction of publicity in cases involving sexual misconduct.
1
F48Employment tribunal procedure regulations may include provision—
a
for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or decisions shall be so effected as to prevent the identification of any person affected by or making the allegation, and
b
for cases involving allegations of sexual misconduct, enabling an F48employment tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal.
2
If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order—
a
in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
b
in the case of publication in any other form, the person publishing the matter, and
c
in the case of matter included in a relevant programme—
i
any body corporate engaged in providing the service in which the programme is included, and
ii
any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
3
Where a person is charged with an offence under subsection (2) it is a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or included, the matter in question.
4
Where an offence under subsection (2) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
a
a director, manager, secretary or other similar officer of the body corporate, or
b
a person purporting to act in any such capacity,
he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
5
In relation to a body corporate whose affairs are managed by its members “director", in subsection (4), means a member of the body corporate.
6
In this section—
“identifying matter”, in relation to a person, means any matter likely to lead members of the public to identify him as a person affected by, or as the person making, the allegation,
“relevant programme” has the same meaning as in the M5Sexual Offences (Amendment) Act 1992,
“restricted reporting order” means an order—
- a
made in exercise of a power conferred by regulations made by virtue of this section, and
- b
prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain,
- a
“sexual misconduct” means the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed,
“sexual offence” means any offence to which section 4 of the M6Sexual Offences (Amendment) Act 1976, the Sexual Offences (Amendment) Act 1992 or section 274(2) of the M7Criminal Procedure (Scotland) Act 1995 applies (offences under the M8Sexual Offences Act 1956, Part I of the M9Criminal Law (Consolidation) (Scotland) Act 1995 and certain other enactments), and
“written publication” has the same meaning as in the Sexual Offences (Amendment) Act 1992.
I112 Restriction of publicity in disability cases.
1
2
F49Employment tribunal procedure regulations may include provision in relation to proceedings to which this section applies for—
a
enabling an F49employment tribunal, on the application of the complainant or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal, and
b
where a restricted reporting order is made in relation to a complaint which is being dealt with by the tribunal together with any other proceedings, enabling the tribunal to direct that the order is to apply also in relation to those other proceedings or such part of them as the tribunal may direct.
3
If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order—
a
in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
b
in the case of publication in any other form, the person publishing the matter, and
c
in the case of matter included in a relevant programme—
i
any body corporate engaged in providing the service in which the programme is included, and
ii
any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
4
Where a person is charged with an offence under subsection (3), it is a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or included, the matter in question.
5
Where an offence under subsection (3) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
a
a director, manager, secretary or other similar officer of the body corporate, or
b
a person purporting to act in any such capacity,
he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
6
In relation to a body corporate whose affairs are managed by its members “director", in subsection (5), means a member of the body corporate.
7
In this section—
“evidence of a personal nature” means any evidence of a medical, or other intimate, nature which might reasonably be assumed to be likely to cause significant embarrassment to the complainant if reported,
“identifying matter” means any matter likely to lead members of the public to identify the complainant or such other persons (if any) as may be named in the order,
“promulgation” has such meaning as may be prescribed by regulations made by virtue of this section,
“relevant programme” means a programme included in a programme service, within the meaning of the M10Broadcasting Act 1990,
“restricted reporting order” means an order—
- a
made in exercise of a power conferred by regulations made by virtue of this section, and
- b
prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain, and
- a
“written publication” includes a film, a sound track and any other record in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings.
F251Financial penalties
S. 12A and cross-heading inserted (25.4.2013 for specified purposes, 6.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 16(1), 103(1)(i), (3); S.I. 2014/253, art. 3(e)
12AFinancial penalties
1
Where an employment tribunal determining a claim involving an employer and a worker—
a
concludes that the employer has breached any of the worker's rights to which the claim relates, and
b
is of the opinion that the breach has one or more aggravating features,
the tribunal may order the employer to pay a penalty to the Secretary of State (whether or not it also makes a financial award against the employer on the claim).
2
The tribunal shall have regard to an employer's ability to pay—
a
in deciding whether to order the employer to pay a penalty under this section;
b
(subject to subsections (3) to (7)) in deciding the amount of a penalty.
3
The amount of a penalty under this section shall be—
a
at least £100;
b
no more than £5,000.
This subsection does not apply where subsection (5) or (7) applies.
4
Subsection (5) applies where an employment tribunal—
a
makes a financial award against an employer on a claim, and
b
also orders the employer to pay a penalty under this section in respect of the claim.
5
In such a case, the amount of the penalty under this section shall be 50% of the amount of the award, except that—
a
if the amount of the financial award is less than £200, the amount of the penalty shall be £100;
b
if the amount of the financial award is more than £10,000, the amount of the penalty shall be £5,000.
6
Subsection (7) applies, instead of subsection (5), where an employment tribunal—
a
considers together two or more claims involving different workers but the same employer, and
b
orders the employer to pay a penalty under this section in respect of any of those claims.
7
In such a case—
a
the amount of the penalties in total shall be at least £100;
b
the amount of a penalty in respect of a particular claim shall be—
i
no more than £5,000, and
ii
where the tribunal makes a financial award against the employer on the claim, no more than 50% of the amount of the award.
But where the tribunal makes a financial award on any of the claims and the amount awarded is less than £200 in total, the amount of the penalties in total shall be £100 (and paragraphs (a) and (b) shall not apply).
8
Two or more claims in respect of the same act and the same worker shall be treated as a single claim for the purposes of this section.
9
Subsection (5) or (7) does not require or permit an order under subsection (1) (or a failure to make such an order) to be reviewed where the tribunal subsequently awards compensation under—
a
section 140(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 (failure to comply with tribunal's recommendation),
b
section 117 of the Employment Rights Act 1996 (failure to reinstate etc.),
c
section 124(7) of the Equality Act 2010 (failure to comply with tribunal's recommendation), or
d
any other provision empowering the tribunal to award compensation, or further compensation, for a failure to comply (or to comply fully) with an order or recommendation of the tribunal.
10
An employer's liability to pay a penalty under this section is discharged if 50% of the amount of the penalty is paid no later than 21 days after the day on which notice of the decision to impose the penalty is sent to the employer.
11
In this section—
“claim”—
- a
means anything that is referred to in the relevant legislation as a claim, a complaint or a reference, other than a reference made by virtue of section 122(2) or 128(2) of the Equality Act 2010 (reference by court of question about a non-discrimination or equality rule etc), and
- b
also includes an application, under regulations made under section 45 of the Employment Act 2002, for a declaration that a person is a permanent employee;
- a
“employer” has the same meaning as in Part 4A of the Employment Rights Act 1996, and also—
- a
in relation to an individual seeking to be employed by a person as a worker, includes that person;
- b
in relation to a right conferred by section 47A or 63A of the Employment Rights Act 1996 (right to time off for young person for study or training), includes the principal within the meaning of section 63A(3) of that Act;
- c
in relation to a right conferred by the Agency Workers Regulations 2010 (S.I. 2010/93), includes the hirer within the meaning of those Regulations and (where the worker is not actually employed by the temporary work agency) the temporary work agency within that meaning;
- a
“financial award” means an award of a sum of money, but does not including anything payable by virtue of section 13;
“worker” has the same meaning as in Part 4A of the Employment Rights Act 1996, and also includes an individual seeking to be employed by a person as a worker.
12
The Secretary of State may by order—
a
amend subsection (3), (5) or (7) by substituting a different amount;
b
amend subsection (5), (7) or (10) by substituting a different percentage;
c
amend this section so as to alter the meaning of “claim”.
13
The Secretary of State shall pay sums received under this section into the Consolidated Fund.
13 Costs and expenses.
F501
Employment tribunal procedure regulations may include provision—
a
for the award of costs or expenses;
b
for the award of any allowances payable under section 5(2)(c) or (3).
1A
Regulations under subsection (1) may include provision authorising an employment tribunal to have regard to a person’s ability to pay when considering the making of an award against him under such regulations.
1B
Employment tribunal procedure regulations may include provision for authorising an employment tribunal—
a
to disallow all or part of the costs or expenses of a representative of a party to proceedings before it by reason of that representative’s conduct of the proceedings;
b
to order a representative of a party to proceedings before it to meet all or part of the costs or expenses incurred by a party by reason of the representative’s conduct of the proceedings;
c
to order a representative of a party to proceedings before it to meet all or part of any allowances payable by the Secretary of State under section 5(2)(c) or (3) by reason of the representative’s conduct of the proceedings.
1C
Employment tribunal procedure regulations may also include provision for taxing or otherwise settling the costs or expenses referred to in subsection (1)(a) or (1B)(b) (and, in particular in England and Wales, for enabling the amount of such costs to be assessed by way of detailed assessment in a county court).
2
In relation to proceedings under section 111 of the M11Employment Rights Act 1996—
a
where the employee has expressed a wish to be reinstated or re-engaged which has been communicated to the employer at least seven days before the hearing of the complaint, F51. . .
F52b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F53employment tribunal procedure regulations shall include provision for requiring the employer to pay the costs or expenses of any postponement or adjournment of the hearing caused by his failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the complainant was dismissed F51. . . or of comparable or suitable employment.
13AF57 Payments in respect of preparation time
1
Employment tribunal procedure regulations may include provision for authorising an employment tribunal to order a party to proceedings before it to make a payment to any other party in respect of time spent in preparing that other party’s case.
2
Regulations under subsection (1) may include provision authorising an employment tribunal to have regard to a person’s ability to pay when considering the making of an order against him under such regulations.
3
If employment tribunal procedure regulations include—
a
provision of the kind mentioned in subsection (1), and
b
provision of the kind mentioned in section 13(1)(a),
they shall also include provision to prevent an employment tribunal exercising its powers under both kinds of provision in favour of the same person in the same proceedings.
F2524
Subsection (3) does not require the regulations to include provision to prevent an employment tribunal from making—
a
an order of the kind mentioned in subsection (1), and
b
an award of the kind mentioned in section 13(1)(a) that is limited to witnesses' expenses.
14 Interest.
1
The Secretary of State may by order made with the approval of the Treasury provide that sums payable in pursuance of decisions of F54employment tribunals shall carry interest at such rate and between such times as may be prescribed by the order.
2
Any interest due by virtue of such an order shall be recoverable as a sum payable in pursuance of the decision.
3
The power conferred by subsection (1) includes power—
a
to specify cases or circumstances in which interest is not payable,
b
to provide that interest is payable only on sums exceeding a specified amount or falling between specified amounts,
c
to make provision for the manner in which and the periods by reference to which interest is to be calculated and paid,
d
to provide that any enactment—
i
does or does not apply in relation to interest payable by virtue of subsection (1), or
ii
applies to it with such modifications as may be specified in the order,
e
to make provision for cases where sums are payable in pursuance of decisions or awards made on appeal from F54employment tribunals,
f
to make such incidental or supplemental provision as the Secretary of State considers necessary.
4
In particular, an order under subsection (1) may provide that the rate of interest shall be the rate specified in section 17 of the M12Judgments Act 1838 as that enactment has effect from time to time.
15 Enforcement.
1
Any sum payable in pursuance of a decision of an F55employment tribunal in England and Wales which has been registered in accordance with F55employment tribunal procedure regulations F203 shall be recoverable by execution issued from a county court or otherwise as if it were payable under an order of a county court.
2
Any order for the payment of any sum made by an F55employment tribunal in Scotland (or any copy of such an order certified by the Secretary of the Tribunals) may be enforced as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
3
In this section a reference to a decision or order of an F55employment tribunal—
a
does not include a decision or order which, on being reviewed, has been revoked by the tribunal, and
b
in relation to a decision or order which on being reviewed, has been varied by the tribunal, shall be construed as a reference to the decision or order as so varied.
Recoupment of social security benefits
16 Power to provide for recoupment of benefits.
1
This section applies to payments which are the subject of proceedings before F59employment tribunals and which are—
a
payments of wages or compensation for loss of wages,
b
payments by employers to employees under sections 146 to 151, sections 168 to 173 or section 192 of the M13Trade Union and Labour Relations (Consolidation) Act 1992,
c
payments by employers to employees under—
i
Part III, V, VI or VII,
ii
section 93, or
iii
Part X,
d
payments by employers to employees of a nature similar to, or for a purpose corresponding to the purpose of, payments within paragraph (b) or (c),F219or
e
payments by employers to employees under regulation 5, 6 or 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010,
and to payments of remuneration under a protective award under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992.
2
The Secretary of State may by regulations make with respect to payments to which this section applies provision for any or all of the purposes specified in subsection (3).
3
The purposes referred to in subsection (2) are—
a
enabling the Secretary of State to recover from an employer, by way of total or partial recoupment of jobseeker’s allowance F179 , income support or income-related employment and support allowance —
i
a sum not exceeding the amount of the prescribed element of the monetary award, or
ii
in the case of a protective award, the amount of the remuneration,
b
c
requiring an F59employment tribunal to order the payment to an employee of only the excess of the prescribed element of the monetary award over the amount of any jobseeker’s allowance F180 , income support or income-related employment and support allowance shown to the tribunal to have been paid to the employee and enabling the Secretary of State to recover from the employer, by way of total or partial recoupment of the benefit, a sum not exceeding that amount.
4
Regulations under this section may be framed—
a
so as to apply to all payments to which this section applies or to one or more classes of those payments, and
F184b
so as to apply to all or any of the benefits mentioned in subsection (3).
5
Regulations under this section may—
a
b
impose on an employer to whom a monetary award or protective award relates a duty—
i
to furnish particulars connected with the award, and
ii
to suspend payments in pursuance of the award during any period prescribed by the regulations,
c
provide for an employer who pays a sum to the Secretary of State in pursuance of this section to be relieved from any liability to pay the sum to another person,
F61cc
provide for the determination by the Secretary of State of any issue arising as to the total or partial recoupment in pursuance of the regulations of a jobseeker’s allowance, unemployment benefit F181 , income support or income-related employment and support allowance ,
6
Regulations under this section may make different provision for different cases.
17 Recoupment: further provisions.
1
Where in pursuance of any regulations under section 16 a sum has been recovered by or paid to the Secretary of State by way of total or partial recoupment of jobseeker’s allowance F185 , income support or income-related employment and support allowance —
a
no sum shall be recoverable under Part III or V of the M15Social Security Administration Act 1992, and
b
no abatement, payment or reduction shall be made by reference to the jobseeker’s allowance F185 , income support or income-related employment and support allowance recouped.
2
Any amount found to have been duly recovered by or paid to the Secretary of State in pursuance of regulations under section 16 by way of total or partial recoupment of jobseeker’s allowance shall be paid into the National Insurance Fund.
3
In section 16—
“monetary award” means the amount which is awarded, or ordered to be paid, to the employee by the tribunal or would be so awarded or ordered apart from any provision of regulations under that section, and
“the prescribed element”, in relation to any monetary award, means so much of that award as is attributable to such matters as may be prescribed by regulations under that section.
4
In section 16 “income-based jobseeker’s allowance” has the same meaning as in the M16Jobseekers Act 1995.
F1865
In this section and section 16 “income-related employment and support allowance” means an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance).
Conciliation
C818 Conciliation.
1
This section applies in the case of F62employment tribunal proceedings and claims which could be the subject of F62employment tribunal proceedings—
F232a
under section 120 or 127 of the Equality Act 2010,
b
F228c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C9d
F68dd
under or by virtue of section 11, 18, 20(1)(a) or 24 of the National Minimum Wage Act 1998;
e
C10f
g
h
arising out of a contravention, or alleged contravention of regulation F755(1) or 7(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
F76i
arising out of a contravention, or alleged contravention of regulation 3 or 6(2) of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002; F77. . .
F229k
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F81m
n
under regulation 41 or 45 of the European Public Limited-Liability Company Regulations 2004
p
q
F231r
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F92s
u
v
under regulation 28 or 32 of the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009(S.I. 2009/2401).F220, F2422009/2401
F247v
under section 56 of the Pensions Act 2008.
w
under regulation 5, 6 or 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010.F241, or
x
arising out of a contravention, or alleged contravention of regulation 5, 12, 13 or 17(2) of the Agency Workers Regulations 2010.
2
Where an application has been presented to an F62employment tribunal, and a copy of it has been sent to a conciliation officer, it is the duty of the conciliation officer—
a
if he is requested to do so by the person by whom and the person against whom the proceedings are brought, or
b
if, in the absence of any such request, the conciliation officer considers that he could act under this subsection with a reasonable prospect of success,
to endeavour to promote a settlement of the proceedings without their being determined by an F62employment tribunal.
F204F942A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Where at any time—
a
a person claims that action has been taken in respect of which proceedings could be brought by him before an F62employment tribunal, but
b
before any application relating to that action has been presented by him a request is made to a conciliation officer (whether by that person or by the person against whom the proceedings could be instituted) to make his services available to them,
the conciliation officer F205 may endeavour to promote a settlement between the parties without proceedings being instituted .
4
Where a person who has presented a complaint to an F62employment tribunal under section 111 of the M20Employment Rights Act 1996 has ceased to be employed by the employer against whom the complaint was made, the conciliation officer shall (for the purpose of promoting a settlement of the complaint in accordance with subsection (2)) in particular—
a
seek to promote the reinstatement or re-engagement of the complainant by the employer, or by a successor of the employer or by an associated employer, on terms appearing to the conciliation officer to be equitable, or
b
where the complainant does not wish to be reinstated or re-engaged, or where reinstatement or re-engagement is not practicable, and the parties desire the conciliation officer to act, seek to promote agreement between them as to a sum by way of compensation to be paid by the employer to the complainant.
F2065
Where a conciliation officer acts pursuant to subsection (3) in a case where the person claiming as specified in paragraph (a) of that subsection has ceased to be employed by the employer and the proceedings which he claims could be brought by him are proceedings under section 111 of the Employment Rights Act 1996, the conciliation officer may in particular—
a
seek to promote the reinstatement or re-engagement of that person by the employer, or by a successor of the employer or by an associated employer, on terms appearing to the conciliation officer to be equitable, or
b
where the person does not wish to be reinstated or re-engaged, or where reinstatement or re-engagement is not practicable, seek to promote agreement between them as to a sum by way of compensation to be paid by the employer to that person.
6
In proceeding under this section a conciliation officer shall, where appropriate, have regard to the desirability of encouraging the use of other procedures available for the settlement of grievances.
7
Anything communicated to a conciliation officer in connection with the performance of his functions under this section shall not be admissible in evidence in any proceedings before an F62employment tribunal, except with the consent of the person who communicated it to that officer.
8
F2539
An order under subsection (8) that adds employment tribunal proceedings to the list in subsection (1) may amend an enactment so as to extend the time limit for instituting those proceedings in such a way as appears necessary or expedient in order to facilitate the conciliation process provided for by section 18A.
10
An order under subsection (8) that removes employment tribunal proceedings from the list in subsection (1) may—
a
repeal or revoke any provision of an enactment that, for the purpose mentioned in subsection (9), extends the time limit for instituting those proceedings;
b
make further amendments which are consequential on that repeal or revocation.
18AF250Requirement to contact ACAS before instituting proceedings
1
Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.
This is subject to subsection (7).
2
On receiving the prescribed information in the prescribed manner, ACAS shall send a copy of it to a conciliation officer.
3
The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings.
4
If—
a
during the prescribed period the conciliation officer concludes that a settlement is not possible, or
b
the prescribed period expires without a settlement having been reached,
the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant.
5
The conciliation officer may continue to endeavour to promote a settlement after the expiry of the prescribed period.
6
In subsections (3) to (5) “settlement” means a settlement that avoids proceedings being instituted.
7
A person may institute relevant proceedings without complying with the requirement in subsection (1) in prescribed cases.
The cases that may be prescribed include (in particular)—
cases where the requirement is complied with by another person instituting relevant proceedings relating to the same matter;
cases where proceedings that are not relevant proceedings are instituted by means of the same form as proceedings that are;
cases where section 18B applies because ACAS has been contacted by a person against whom relevant proceedings are being instituted.
8
A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4).
9
Where a conciliation officer acts under this section in a case where the prospective claimant has ceased to be employed by the employer and the proposed proceedings are proceedings under section 111 of the Employment Rights Act 1996, the conciliation officer may in particular—
a
seek to promote the reinstatement or re-engagement of the prospective claimant by the employer, or by a successor of the employer or by an associated employer, on terms appearing to the conciliation officer to be equitable, or
b
where the prospective claimant does not wish to be reinstated or re-engaged, or where reinstatement or re-engagement is not practicable, seek to promote agreement between them as to a sum by way of compensation to be paid by the employer to the prospective claimant.
10
In subsections (1) to (7) “prescribed” means prescribed in employment tribunal procedure regulations.
11
The Secretary of State may by employment tribunal procedure regulations make such further provision as appears to the Secretary of State to be necessary or expedient with respect to the conciliation process provided for by subsections (1) to (8).
12
Employment tribunal procedure regulations may (in particular) make provision—
a
authorising the Secretary of State to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of providing information to ACAS under subsection (1) or issuing a certificate under subsection (4);
b
requiring ACAS to give a person any necessary assistance to comply with the requirement in subsection (1);
c
for the extension of the period prescribed for the purposes of subsection (3);
d
treating the requirement in subsection (1) as complied with, for the purposes of any provision extending the time limit for instituting relevant proceedings, by a person who is relieved of that requirement by virtue of subsection (7)(a).
18BConciliation before institution of proceedings: other ACAS duties
1
This section applies where—
a
a person contacts ACAS requesting the services of a conciliation officer in relation to a matter that (if not settled) is likely to give rise to relevant proceedings against that person, and
b
ACAS has not received information from the prospective claimant under section 18A(1).
2
This section also applies where—
a
a person contacts ACAS requesting the services of a conciliation officer in relation to a matter that (if not settled) is likely to give rise to relevant proceedings by that person, and
b
the requirement in section 18A(1) would apply to that person but for section 18A(7).
3
Where this section applies a conciliation officer shall endeavour to promote a settlement between the persons who would be parties to the proceedings.
4
If at any time—
a
the conciliation officer concludes that a settlement is not possible, or
b
a conciliation officer comes under the duty in section 18A(3) to promote a settlement between the persons who would be parties to the proceedings,
the duty in subsection (3) ceases to apply at that time.
5
In subsections (3) and (4) “settlement” means a settlement that avoids proceedings being instituted.
6
Subsection (9) of section 18A applies for the purposes of this section as it applies for the purposes of that section.
19 Conciliation procedure.
F961
F97Employment tribunal procedure regulations shall include in relation to F97employment tribunal proceedings in the case of which any enactment makes provision for conciliation—
a
provisions requiring a copy of the application by which the proceedings are instituted, and a copy of any notice relating to it which is lodged by or on behalf of the person against whom the proceedings are brought, to be sent to a conciliation officer, F98and
b
provisions securing that the applicant and the person against whom the proceedings are brought are notified that the services of a conciliation officer are available to them, F99. . .
F99c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1002
F207. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19AF264Conciliation: recovery of sums payable under compromises
1
Subsections (3) to (6) apply if—
a
a conciliation officer—
i
has taken action under section 18 in a case, and
ii
issues a certificate in writing stating that a compromise has been reached in the case, and
b
all of the terms of the compromise are set out—
i
in a single relevant document, or
ii
in a combination of two or more relevant documents.
2
A document is a “relevant document” for the purposes of subsection (1) if—
a
it is the certificate, or
b
it is a document that is referred to in the certificate or that is referred to in a document that is within this paragraph.
3
Any sum payable by a person under the terms of the compromise (a “compromise sum”) shall, subject to subsections (4) to (7), be recoverable—
a
in England and Wales, by execution issued from a county court or otherwise as if the sum were payable under an order of that court;
b
in Scotland, by diligence as if the certificate were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
4
A compromise sum is not recoverable under subsection (3) if—
a
the person by whom it is payable applies for a declaration that the sum would not be recoverable from him under the general law of contract, and
b
that declaration is made.
5
If rules of court so provide, a compromise sum is not recoverable under subsection (3) during the period—
a
beginning with the issue of the certificate, and
b
ending at such time as may be specified in, or determined under, rules of court.
6
If the terms of the compromise provide for the person to whom a compromise sum is payable to do anything in addition to discontinuing or not starting proceedings, that sum is recoverable by him under subsection (3)—
a
in England and Wales, only if a county court so orders;
b
in Scotland, only if the sheriff so orders.
7
Once an application has been made for a declaration under subsection (4) in relation to a sum, no further reliance may be placed on subsection (3) for the recovery of the sum while the application is pending.
8
An application for a declaration under subsection (4) may be made to an employment tribunal, a county court or the sheriff.
9
Employment tribunal procedure regulations may (in particular) make provision as to the time within which an application to an employment tribunal for a declaration under subsection (4) is to be made.
10
Rules of court may make provision as to—
a
the time within which an application to a county court for a declaration under subsection (4) is to be made;
b
the time within which an application to the sheriff for a declaration under subsection (4) is to be made;
c
when an application (whether made to a county court, the sheriff or an employment tribunal) for a declaration under subsection (4) is pending for the purposes of subsection (7).
11
Nothing in this section shall be taken to prejudice any rights or remedies that a person has apart from this section.
12
In this section “compromise” (except in the phrase “compromise sum”) means a settlement, or compromise, to avoid proceedings or bring proceedings to an end.
Part II The Employment Appeal Tribunal
Introductory
20 The Appeal Tribunal.
1
The Employment Appeal Tribunal (“the Appeal Tribunal") shall continue in existence.
2
The Appeal Tribunal shall have a central office in London but may sit at any time and in any place in Great Britain.
3
The Appeal Tribunal shall be a superior court of record and shall have an official seal which shall be judicially noticed.
F1024
Subsection (2) is subject to regulation 34 of the Transnational Information and Consultation of Employees Regulations F1031999,F104 regulation 46(1) of the European Public Limited-Liability Company Regulations F1052004,F106 regulation 36(1) of the Information and Consultation of Employees Regulations F1072004,F263regulation 37(1) of the European Cooperative Society (Involvement of Employees) Regulations F2132006,F262regulation 58(1) of the Companies (Cross-Border Mergers) Regulations 2007F214and regulation 33(1) of the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009(S.I. 2009/2401).
Jurisdiction
21 Jurisdiction of Appeal Tribunal.
1
An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an F108employment tribunal under or by virtue of—
F236a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F236b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F236c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
M21 the Trade Union and Labour Relations (Consolidation) Act 1992,
F237e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
fg
F111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F112g
this Act,
ga
the National Minimum Wage Act 1998,
gb
the Employment Relations Act 1999,
F113gc
the Equality Act 2006,
F248gd
the Pensions Act 2008,
F238ge
the Equality Act 2010,
F233l
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
o
the European Public Limited-Liability Company Regulations 2004
r
F235s
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
w
the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009(S.I. 2009/2401).F222, F244...
x
the Employment Relations Act 1999 (Blacklists) Regulations 2010.F243, or
y
the Agency Workers Regulations 2010.
2
3
Subsection (1) does not affect any provision contained in, or made under, any Act which provides for an appeal to lie to the Appeal Tribunal (whether from an F108employment tribunal, the Certification Officer or any other person or body) otherwise than on a question to which that subsection applies.
F1374
The Appeal Tribunal also has any jurisdiction in respect of matters other than appeals which is conferred on it by or under—
a
the Trade Union and Labour Relations (Consolidation) Act 1992,
b
this Act, or
c
any other Act.
Membership etc.
22 Membership of Appeal Tribunal.
1
The Appeal Tribunal shall consist of—
a
b
at least one judge of the Court of Session nominated from time to time by the Lord President of the Court of Session, and
c
such number of other members as may be appointed from time to time by Her Majesty on the joint recommendation of the Lord Chancellor and the Secretary of State (“appointed members").
2
The appointed members shall be persons who appear to the Lord Chancellor and the Secretary of State to have special knowledge or experience of industrial relations either—
a
as representatives of employers, or
b
as representatives of workers (within the meaning of the M23Trade Union and Labour Relations (Consolidation) Act 1992).
3
The F140Lord Chief Justice shall appoint one of the judges nominated under subsection (1) to be the President of the Appeal Tribunal.
F1413A
The Lord Chief Justice must not make an appointment under subsection (3) unless—
a
he has consulted the Lord Chancellor, and
b
the Lord President of the Court of Session agrees.
4
No judge shall be nominated a member of the Appeal Tribunal except with his consent.
F1425
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
6
The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under subsection (3A)(b).
23 Temporary membership.
1
At any time when—
a
the office of President of the Appeal Tribunal is vacant, or
b
the person holding that office is temporarily absent or otherwise unable to act as the President of the Appeal Tribunal,
the F143Lord Chief Justice may nominate another judge nominated under section 22(1)(a) to act temporarily in his place.
2
At any time when a judge of the Appeal Tribunal nominated under paragraph (a) or (b) of subsection (1) of section 22 is temporarily absent or otherwise unable to act as a member of the Appeal Tribunal—
a
in the case of a judge nominated under paragraph (a) of that subsection, the F144Lord Chief Justice may nominate another judge who is qualified to be nominated under that paragraph to act temporarily in his place, and
b
in the case of a judge nominated under paragraph (b) of that subsection, the Lord President of the Court of Session may nominate another judge who is qualified to be nominated under that paragraph to act temporarily in his place.
3
At any time when an appointed member of the Appeal Tribunal is temporarily absent or otherwise unable to act as a member of the Appeal Tribunal, the Lord Chancellor and the Secretary of State may jointly appoint a person appearing to them to have the qualifications for appointment as an appointed member to act temporarily in his place.
4
A person nominated or appointed to act temporarily in place of the President or any other member of the Appeal Tribunal, when so acting, has all the functions of the person in whose place he acts.
5
No judge shall be nominated to act temporarily as a member of the Appeal Tribunal except with his consent.
F1456
The functions conferred on the Lord Chief Justice by the preceding provisions of this section may be exercised only after consulting the Lord Chancellor.
7
The functions conferred on the Lord Chancellor by subsection (3) may be exercised only after consultation with the Lord Chief Justice.
8
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
24 Temporary additional judicial membership.
F1461
This section applies if both of the following conditions are met—
a
the Lord Chancellor thinks that it is expedient, after consulting the Lord Chief Justice, for a qualified person to be appointed to be a temporary additional judge of the Appeal Tribunal in order to facilitate in England and Wales the disposal of business in the Appeal Tribunal;
b
the Lord Chancellor requests the Lord Chief Justice to make such an appointment.
1A
The Lord Chief Justice may, after consulting the Lord Chancellor, appoint a qualified person as mentioned in subsection (1)(a).
1B
An appointment under this section is—
a
for such period, or
b
on such occasions,
as the Lord Chief Justice determines, after consulting the Lord Chancellor.
2
In F147this section“qualified person” means a person who—
a
is qualified for appointment as a judge of the High Court under section 10 of the M24Supreme Court Act 1981, or
b
has held office as a judge of the High Court or the Court of Appeal.
3
A person appointed to be a temporary additional judge of the Appeal Tribunal has all the functions of a judge nominated under section 22(1)(a).
F1484
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
24AF151Training etc. of members of Appeal Tribunal
The Senior President of Tribunals is responsible, within the resources made available by the Lord Chancellor, for the maintenance of appropriate arrangements for the training, guidance and welfare of judges, and other members, of the Appeal Tribunal (in their capacities as members of the Appeal Tribunal).
24BOaths
1
Subsection (2) applies to a person (“the appointee”)—
a
who is appointed under section 22(1)(c) or 23(3), or
b
who is appointed under section 24(1A) and—
i
falls when appointed within paragraph (a), but not paragraph (b), of section 24(2), and
ii
has not previously taken the required oaths after accepting another office.
2
The appointee must take the required oaths before—
a
the Senior President of Tribunals, or
b
an eligible person who is nominated by the Senior President of Tribunals for the purpose of taking the oaths from the appointee.
3
If the appointee is a member of the Appeal Tribunal appointed before the coming into force of this section, the requirement in subsection (2) applies in relation to the appointee from the coming into force of this section.
4
A person is eligible for the purposes of subsection (2)(b) if one or more of the following paragraphs applies to him—
a
he holds high judicial office (as defined in section 60(2) of the Constitutional Reform Act 2005);
b
he holds judicial office (as defined in section 109(4) of that Act);
c
he holds (in Scotland) the office of sheriff.
5
In this section “the required oaths” means—
a
the oath of allegiance, and
b
the judicial oath,
as set out in the Promissory Oaths Act 1868.
25 Tenure of appointed members.
1
Subject to subsections (2) to (4), an appointed member shall hold and vacate office in accordance with the terms of his appointment.
2
An appointed member—
a
may at any time resign his membership by notice in writing addressed to the Lord Chancellor and the Secretary of State, and
b
shall vacate his office on the day on which he attains the age of seventy.
3
Subsection (2)(b) is subject to section 26(4) to (6) of the M25Judicial Pensions and Retirement Act 1993 (Lord Chancellor’s power to authorise continuance of office up to the age of seventy-five).
4
If the Lord Chancellor, after consultation with the Secretary of State, is satisfied that an appointed member—
a
has been absent from sittings of the Appeal Tribunal for a period longer than six consecutive months without the permission of the President of the Appeal Tribunal,
b
has become bankrupt or F249had a debt relief order (under Part 7A of the Insolvency Act 1986) made in respect of him or has made an arrangement with his creditors, or has had his estate sequestrated or made a trust deed for behoof of his creditors or a composition contract,
c
is incapacitated by physical or mental illness, or
d
is otherwise unable or unfit to discharge the functions of a member,
the Lord Chancellor may declare his office as a member to be vacant and shall notify the declaration in such manner as the Lord Chancellor thinks fit; and when the Lord Chancellor does so, the office becomes vacant.
F1495
The Lord Chancellor may declare an appointed member's office vacant under subsection (4) only with the concurrence of the appropriate senior judge.
6
The appropriate senior judge is the Lord Chief Justice of England and Wales, unless the member whose office is to be declared vacant exercises functions wholly or mainly in Scotland, in which case it is the Lord President of the Court of Session.
F18826 Staff.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27 Remuneration, pensions and allowances.
1
The Secretary of State shall pay—
a
the appointed members, F192 and
b
any person appointed to act temporarily in the place of an appointed member, F189...
F190c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
such remuneration and such travelling and other allowances as he may, with the relevant approval, determine; and for this purpose the relevant approval is that of the Treasury in the case of persons within paragraph (a) or (b)F191....
2
A person appointed to be a temporary additional judge of the Appeal Tribunal shall be paid such remuneration and allowances as the Lord Chancellor may, with the approval of the Treasury, determine.
3
If the Secretary of State determines, with the approval of the Treasury, that this subsection applies in the case of an appointed member, the Secretary of State shall—
a
pay such pension, allowance or gratuity to or in respect of that person on his retirement or death, or
b
make to the member such payments towards the provision of a pension, allowance or gratuity for his retirement or death,
as the Secretary of State may, with the approval of the Treasury, determine.
4
Where—
a
a person ceases to be an appointed member otherwise than on his retirement or death, and
b
it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation,
the Secretary of State may make to him a payment of such amount as the Secretary of State may, with the approval of the Treasury, determine.
28 Composition of Appeal Tribunal.
1
The Appeal Tribunal may sit, in accordance with directions given by the President of the Appeal Tribunal, either as a single tribunal or in two or more divisions concurrently.
2
Subject to subsections (3) to (5), proceedings before the 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—
a
of persons whose knowledge or experience of industrial relations is as representatives of employers, and
b
of persons whose knowledge or experience of industrial relations is as representatives of workers.
3
With the consent of the parties, proceedings before the Appeal Tribunal may be heard by a judge and one appointed member or by a judge and three appointed members.
4
Proceedings on an appeal on a F194chairman-alone question shall be heard by a judge alone unless a judge directs that the proceedings shall be heard in accordance with subsections (2) and (3).
F1934A
In subsection (4) “chairman-alone question” means—
a
a question arising from any decision of an employment tribunal that is a decision of—
i
the person mentioned in section 4(1)(a) acting alone, or
ii
any Employment Judge acting alone, or
b
a question arising in any proceedings before an employment tribunal that are proceedings before—
i
the person mentioned in section 4(1)(a) alone, or
ii
any Employment Judge alone.
F1505
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Procedure
29 Conduct of hearings.
1
A person may appear before the Appeal Tribunal in person or be represented by—
a
counsel or a solicitor,
b
a representative of a trade union or an employers’ association, or
c
any other person whom he desires to represent him.
2
The Appeal Tribunal has in relation to—
a
the attendance and examination of witnesses,
b
the production and inspection of documents, and
c
all other matters incidental to its jurisdiction,
the same powers, rights, privileges and authority (in England and Wales) as the High Court and (in Scotland) as the Court of Session.
29AF168Practice directions
1
Directions about the procedure of the Appeal Tribunal may be given—
a
by the Senior President of Tribunals, or
b
by the President of the Appeal Tribunal.
2
A power under subsection (1) includes—
a
power to vary or revoke directions given in exercise of the power, and
b
power to make different provision for different purposes.
3
Directions under subsection (1)(a) may not be given without the approval of the Lord Chancellor.
4
Directions under subsection (1)(b) may not be given without the approval of—
a
the Senior President of Tribunals, and
b
the Lord Chancellor.
5
Subsection (1) does not prejudice any power apart from that subsection to give directions about the procedure of the Appeal Tribunal.
6
Directions may not be given in exercise of any such power as is mentioned in subsection (5) without the approval of—
a
the Senior President of Tribunals, and
b
the Lord Chancellor.
7
Subsections (3), (4)(b) and (6)(b) do not apply to directions to the extent that they consist of guidance about any of the following—
a
the application or interpretation of the law;
b
the making of decisions by members of the Appeal Tribunal.
8
Subsections (3), (4)(b) and (6)(b) do not apply to directions to the extent that they consist of criteria for determining which members of the Appeal Tribunal may be chosen to decide particular categories of matter; but the directions may, to that extent, be given only after consulting the Lord Chancellor.
9
Subsections (4) and (6) do not apply to directions given in a particular case for the purposes of that case only.
10
Subsection (6) does not apply to directions under section 28(1).
30 Appeal Tribunal procedure rules.
1
The Lord Chancellor, after consultation with the Lord President of the Court of Session, shall make rules (“Appeal Tribunal procedure rules") with respect to proceedings before the Appeal Tribunal.
2
Appeal Tribunal procedure rules may, in particular, include provision—
a
with respect to the manner in which, and the time within which, an appeal may be brought,
b
with respect to the manner in which F152or complaint to the Appeal Tribunal may be made,
c
for requiring persons to attend to give evidence and produce documents and for authorising the administration of oaths to witnesses,
d
e
F155. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
f
for interlocutory matters arising on any appeal or application to the Appeal Tribunal to be dealt with otherwise than in accordance with section 28(2) to (5) of this Act.
F1562A
Appeal Tribunal procedure rules may make provision of a kind which may be made by employment tribunal procedure regulations under section 10(2), (5), (6) or (7).
2B
For the purposes of subsection (2A)—
a
the reference in section 10(2) to section 4 shall be treated as a reference to section 28, and
b
the reference in section 10(4) to the President or a Regional Chairman shall be treated as a reference to a judge of the Appeal Tribunal.
2C
Section 10B shall have effect in relation to a direction to or determination of the Appeal Tribunal as it has effect in relation to a direction to or determination of an employment tribunal.
3
Subject to Appeal Tribunal procedure rules F195 and directions under section 28(1) or 29A(1) , the Appeal Tribunal has power to regulate its own procedure.
31 Restriction of publicity in cases involving sexual misconduct.
1
Appeal Tribunal procedure rules may, as respects proceedings to which this section applies, include provision—
a
for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or decisions shall be so effected as to prevent the identification of any person affected by or making the allegation, and
b
for cases involving allegations of sexual misconduct, enabling the Appeal Tribunal, on the application of any party to the proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the Appeal Tribunal.
2
This section applies to—
a
proceedings on an appeal against a decision of an F157employment tribunal to make, or not to make, a restricted reporting order, and
3
If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order—
a
in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
b
in the case of publication in any other form, the person publishing the matter, and
c
in the case of matter included in a relevant programme—
i
any body corporate engaged in providing the service in which the programme is included, and
ii
any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
4
Where a person is charged with an offence under subsection (3) it is a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or included, the matter in question.
5
Where an offence under subsection (3) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
a
a director, manager, secretary or other similar officer of the body corporate, or
b
a person purporting to act in any such capacity,
he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
6
In relation to a body corporate whose affairs are managed by its members “director", in subsection (5), means a member of the body corporate.
7
“Restricted reporting order” means—
a
in subsections (1) and (3), an order—
i
made in exercise of a power conferred by rules made by virtue of this section, and
ii
prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain, and
b
in subsection (2), an order which is a restricted reporting order for the purposes of section 11.
8
In this section—
“identifying matter”, in relation to a person, means any matter likely to lead members of the public to identify him as a person affected by, or as the person making, the allegation,
“relevant programme” has the same meaning as in the M26Sexual Offences (Amendment) Act 1992,
“sexual misconduct” means the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed,
“sexual offence” means any offence to which section 4 of the M27Sexual Offences (Amendment) Act 1976, the Sexual Offences (Amendment) Act 1992 or section 274(2) of the M28Criminal Procedure (Scotland) Act 1995 applies (offences under the M29Sexual Offences Act 1956, Part I of the M30Criminal Law (Consolidation) (Scotland) Act 1995 and certain other enactments), and
“written publication” has the same meaning as in the Sexual Offences (Amendment) Act 1992.
I232 Restriction of publicity in disability cases.
1
This section applies to proceedings—
a
on an appeal against a decision of an F158employment tribunal to make, or not to make, a restricted reporting order, or
2
Appeal Tribunal procedure rules may, as respects proceedings to which this section applies, include provision for—
a
enabling the Appeal Tribunal, on the application of the complainant or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the Appeal Tribunal, and
b
where a restricted reporting order is made in relation to an appeal which is being dealt with by the Appeal Tribunal together with any other proceedings, enabling the Appeal Tribunal to direct that the order is to apply also in relation to those other proceedings or such part of them as the Appeal Tribunal may direct.
3
If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order—
a
in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
b
in the case of publication in any other form, the person publishing the matter, and
c
in the case of matter included in a relevant programme—
i
any body corporate engaged in providing the service in which the programme is included, and
ii
any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
4
Where a person is charged with an offence under subsection (3), it is a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or included, the matter in question.
5
Where an offence under subsection (3) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
a
a director, manager, secretary or other similar officer of the body corporate, or
b
a person purporting to act in any such capacity,
he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
6
In relation to a body corporate whose affairs are managed by its members “director", in subsection (5), means a member of the body corporate.
7
“Restricted reporting order” means—
a
in subsection (1), an order which is a restricted reporting order for the purposes of section 12, and
b
in subsections (2) and (3), an order—
i
made in exercise of a power conferred by rules made by virtue of this section, and
ii
prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain.
8
In this section—
“complainant” means the person who made the complaint to which the proceedings before the Appeal Tribunal relate,
“identifying matter” means any matter likely to lead members of the public to identify the complainant or such other persons (if any) as may be named in the order,
“promulgation” has such meaning as may be prescribed by rules made by virtue of this section,
“relevant programme” means a programme included in a programme service, within the meaning of the M31Broadcasting Act 1990, and
“written publication” includes a film, a sound track and any other record in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings.
C1133 Restriction of vexatious proceedings.
1
If, on an application made by the Attorney General or the Lord Advocate under this section, the Appeal Tribunal is satisfied that a person has habitually and persistently and without any reasonable ground—
a
b
the Appeal Tribunal may, after hearing the person or giving him an opportunity of being heard, make a restriction of proceedings order.
2
A “restriction of proceedings order” is an order that—
a
b
3
A restriction of proceedings order may provide that it is to cease to have effect at the end of a specified period, but otherwise it remains in force indefinitely.
4
Leave for the institution or continuance of, or for the making of an application in, any proceedings F165before the Certification Officer, in an F160employment tribunal or before the Appeal Tribunal by a person who is the subject of a restriction of proceedings order shall not be given unless the Appeal Tribunal is satisfied—
a
that the proceedings or application are not an abuse of the F166process , and
b
that there are reasonable grounds for the proceedings or application.
5
A copy of a restriction of proceedings order shall be published in the London Gazette and the Edinburgh Gazette.
34F167 Costs and expenses
1
Appeal Tribunal procedure rules may include provision for the award of costs or expenses.
2
Rules under subsection (1) may include provision authorising the Appeal Tribunal to have regard to a person’s ability to pay when considering the making of an award against him under such rules.
3
Appeal Tribunal procedure rules may include provision for authorising the Appeal Tribunal—
a
to disallow all or part of the costs or expenses of a representative of a party to proceedings before it by reason of that representative’s conduct of the proceedings;
b
to order a representative of a party to proceedings before it to meet all or part of the costs or expenses incurred by a party by reason of the representative’s conduct of the proceedings.
4
Appeal Tribunal procedure rules may also include provision for taxing or otherwise settling the costs or expenses referred to in subsection (1) or (3)(b) (and, in particular in England and Wales, for enabling the amount of such costs to be assessed by way of detailed assessment in the High Court).
Decisions and further appeals
35 Powers of Appeal Tribunal.
1
For the purpose of disposing of an appeal, the Appeal Tribunal may—
a
exercise any of the powers of the body or officer from whom the appeal was brought, or
b
remit the case to that body or officer.
2
Any decision or award of the Appeal Tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision or award of the body or officer from whom the appeal was brought.
36 Enforcement of decisions etc.
1
F169. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
F169. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
F169. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
No person shall be punished for contempt of the Appeal Tribunal except by, or with the consent of, a judge.
5
A magistrates’ court shall not remit the whole or part of a fine imposed by the Appeal Tribunal unless it has the consent of a judge who is a member of the Appeal Tribunal.
37 Appeals from Appeal Tribunal.
1
Subject to subsection (3), an appeal on any question of law lies from any decision or order of the Appeal Tribunal to the relevant appeal court with the leave of the Appeal Tribunal or of the relevant appeal court.
2
In subsection (1) the “relevant appeal court” means—
a
in the case of proceedings in England and Wales, the Court of Appeal, and
b
in the case of proceedings in Scotland, the Court of Session.
3
No appeal lies from a decision of the Appeal Tribunal refusing leave for the institution or continuance of, or for the making of an application in, proceedings by a person who is the subject of a restriction of proceedings order made under section 33.
4
This section is without prejudice to section 13 of the M32Administration of Justice Act 1960 (appeal in case of contempt of court).
Part III Supplementary
Crown employment and Parliamentary staff
38 Crown employment.
1
This Act has effect in relation to Crown employment and persons in Crown employment as it has effect in relation to other employment and other employees.
2
In this Act “Crown employment” means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision.
3
For the purposes of the application of this Act in relation to Crown employment in accordance with subsection (1)—
a
references to an employee shall be construed as references to a person in Crown employment, and
b
references to a contract of employment shall be construed as references to the terms of employment of a person in Crown employment.
4
Subsection (1) applies to—
a
service as a member of the naval, military or air forces of the Crown, and
b
employment by an association established for the purposes of Part XI of the M33Reserve Forces Act 1996;
but Her Majesty may by Order in Council make any provision of this Act apply to service as a member of the naval, military or air forces of the Crown subject to such exceptions and modifications as may be specified in the Order in Council.
39 Parliamentary staff.
1
This Act has effect in relation to employment as a relevant member of the House of Lords staff or a relevant member of the House of Commons staff as it has effect in relation to other employment.
2
Nothing in any rule of law or the law or practice of Parliament prevents a relevant member of the House of Lords staff or a relevant member of the House of Commons staff from bringing before an F170employment tribunal proceedings of any description which could be brought before such a tribunal by a person who is not a relevant member of the House of Lords staff or a relevant member of the House of Commons staff.
3
For the purposes of the application of this Act in relation to a relevant member of the House of Commons staff—
a
references to an employee shall be construed as references to a relevant member of the House of Commons staff, and
b
references to a contract of employment shall be construed as including references to the terms of employment of a relevant member of the House of Commons staff.
4
In this Act “relevant member of the House of Lords staff” means any person who is employed under a contract of employment with the Corporate Officer of the House of Lords.
5
In this Act “relevant member of the House of Commons staff” has the same meaning as in section 195 of the M34Employment Rights Act 1996; and (subject to an Order in Council under subsection (12) of that section)—
a
subsections (6) and (7) of that section have effect for determining who is the employer of a relevant member of the House of Commons staff for the purposes of this Act, and
b
subsection (8) of that section applies in relation to proceedings brought by virtue of this section.
General
40 Power to amend Act.
1
The Secretary of State F171and the Lord Chancellor, acting jointly, may by order—
a
provide that any provision of this Act to which this section applies and which is specified in the order shall not apply to persons, or to employments, of such classes as may be prescribed in the order, or
b
provide that any provision of this Act to which this section applies shall apply to persons or employments of such classes as may be prescribed in the order subject to such exceptions and modifications as may be so prescribed.
2
This section applies to sections 3, 8, 16 and 17 and to section 18 so far as deriving from section 133 of the M35Employment Protection (Consolidation) Act 1978.
41 Orders, regulations and rules.
1
Any power conferred by this Act on a Minister of the Crown to make an order, and any power conferred by this Act to make regulations or rules, is exercisable by statutory instrument.
2
No recommendation shall be made to Her Majesty to make an Order in Council under section 38(4), and no order shall be made under section 3, 4(4) F256or (6D)F257, 28(5) or 40, unless a draft of the Order in Council or order has been laid before Parliament and approved by a resolution of each House of Parliament.
3
A statutory instrument containing—
a
an order made by a Minister of the Crown under any other provision of this Act except Part II of Schedule 2, or
b
regulations or rules made under this Act,
is subject to annulment in pursuance of a resolution of either House of Parliament.
4
Any power conferred by this Act which is exercisable by statutory instrument includes power to make such incidental, supplementary or transitional provision as appears to the Minister exercising the power to be necessary or expedient.
42 Interpretation.
1
In this Act—
“the Appeal Tribunal” means the Employment Appeal Tribunal,
“Appeal Tribunal procedure rules” shall be construed in accordance with section 30(1),
“appointed member” shall be construed in accordance with section 22(1)(c),
F172“Certification Officer” shall be construed in accordance with section 254 of the Trade Union and Labour Relations (Consolidation) Act 1992,
“conciliation officer” means an officer designated by the Advisory, Conciliation and Arbitration Service under section 211 of the M36Trade Union and Labour Relations (Consolidation) Act 1992,
“contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing,
“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment,
“employer”, in relation to an employee, means the person by whom the employee is (or, where the employment has ceased, was) employed,
“employers’ association” has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992,
“employment” means employment under a contract of employment and “employed” shall be construed accordingly,
“F173employment tribunal procedure regulations” shall be construed in accordance with section 7(1),
“statutory provision” means a provision, whether of a general or a special nature, contained in, or in any document made or issued under, any Act, whether of a general or special nature,
“successor”, in relation to the employer of an employee, means (subject to subsection (2)) a person who in consequence of a change occurring (whether by virtue of a sale or other disposition or by operation of law) in the ownership of the undertaking, or of the part of the undertaking, for the purposes of which the employee was employed, has become the owner of the undertaking or part, and
“trade union” has the meaning given by section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992.
2
The definition of “successor” in subsection (1) has effect (subject to the necessary modifications) in relation to a case where—
a
the person by whom an undertaking or part of an undertaking is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change, or
b
the persons by whom an undertaking or part of an undertaking is owned immediately before a change (whether as partners, trustees or otherwise) include the persons by whom, or include one or more of the persons by whom, it is owned immediately after the change,
as it has effect where the previous owner and the new owner are wholly different persons.
3
For the purposes of this Act any two employers shall be treated as associated if—
a
one is a company of which the other (directly or indirectly) has control, or
b
both are companies of which a third person (directly or indirectly) has control;
and “associated employer” shall be construed accordingly.
Final provisions
43 Consequential amendments.
Schedule 1 (consequential amendments) shall have effect.
44 Transitionals, savings and transitory provisions.
Schedule 2 (transitional provisions, savings and transitory provisions) shall have effect.
45 Repeals and revocations.
The enactments specified in Part I of Schedule 3 are repealed, and the instruments specified in Part II of that Schedule are revoked, to the extent specified in the third column of that Schedule.
46 Commencement.
This Act shall come into force at the end of the period of three months beginning with the day on which it is passed.
47 Extent.
This Act does not extend to Northern Ireland.
48 Short title.
This Act may be cited as F174the Employment Tribunals Act 1996.
Words in part heading substituted (1.8.1998) by 1998 c. 8, s. 1(2)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1