Rules of Procedure

Introduction

The origins of the Employment Tribunals can be traced back to the Industrial Training Act 1964. This Act established Appeal Tribunals to hear disputes about liability to pay Industrial Training Levies. Since then, Employment Tribunals have been given additional powers to hear many different types of employment disputes. Most of the cases that Employment Tribunals hear are about unfair dismissal, which to some extent has helped to shape the way employment law is today. For example, the current system of unfair dismissal law can trace its origins back to the Donovan Commission Report, or the Royal Commission on Trade Unions and Employers Associations, which was published in 1968.

At the time, individual employment rights were minimal, and the Report noted in the period 1964-66 that 276 unofficial strikes had taken place each year on average as a result of disputes about whether individuals should, or should not be employed, suspended, or dismissed.

The Donovan Report made several recommendations, including:

  • A majority of the Commission recommended early legislation to establish statutory machinery to safeguard employees against unfair dismissal. 

  • The Commission recommended that legislation should state that dismissal is justified only when there is a valid reason for it connected with the capacity or conduct of the worker and that in the absence of such a valid reason, it should be unfair. Certain specific reasons which were not valid were to be specified, namely dismissals for trade union membership or activity, race, colour, sex, marital status, religious or political opinion, national extraction or social origin.

  • The Report recommended that employees who considered they had been unfairly dismissed would have a right to complain, within five working days of dismissal to a "Labour Tribunal" seeking either compensation or if both parties agreed, reinstatement. 

  • The Report recommended them being renamed as Labour Tribunals (which never happened) and stated that it should be the primary duty of the Tribunal to bring about an amicable settlement, a role that is now fulfilled by Acas.

  • The Commission recommended that unfair dismissal rights should apply from the first day of employment, without a qualifying period, although the fact that an employee was within a probationary period could be something that a Tribunal could take into account. The eventual implementation of unfair dismissal law was implemented in the Industrial Relations Act 1971 and had a qualifying period of 104 weeks for unfair dismissal rights.

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Renaming of Industrial Tribunals

Industrial Tribunals were renamed by s. 1(1) of the Employment Rights (Dispute Resolution) Act 1998. With effect from 1 August 1998, Industrial Tribunals became known as Employment Tribunals. As a consequence of this, the Industrial Tribunals Act 1996 was renamed and became known as the Employment Tribunals Act 1996. After that, any statutory reference to an Industrial Tribunal was to be a reference to an Employment Tribunal.

 

​In Scotland, the President and Vice-President of the Industrial Tribunals were to be known as the President and Vice-President of the Employment Tribunals, and Chairmen of the Employment Tribunals were to be known as Employment Judges.

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Employment Appeal Tribunal

Appeals are made to the Employment Appeal Tribunal and can only be made on questions of law, or where the Employment Tribunal's treatment of the facts amount to an error of law. For example, in cases where there was no evidence to support a particular finding of fact, or where the Tribunal's decision was perverse.

The Rules for appeals to the Employment Appeal Tribunal are governed by the separate Rules of the Employment Appeal Tribunal and are not covered in this guidance.

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Jurisdiction

The jurisdiction of the Employment Tribunals derives from the Employment Tribunals Act 1996. With one exception, most employment rights have been created by statute (for example, unfair dismissal rights under the Employment Rights Act 1996, or discrimination rights under the Equality Act 2010) and can only be heard by an Employment Tribunal.

The exception relates to breach of contract claims. Such claims can also be heard at the Sheriff Court or High Court under their powers to hear contractual disputes. However, under the provisions of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 (SI 1994/1624) breach of contract claims may also be heard by an Employment Tribunal (if the value of the claim does not exceed £25,000 and the claim itself arises from or is outstanding on termination of the contract of employment).

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Employment Tribunal rules of procedure

Originally there were separate Rules and Regulations for Scotland, England and Wales, but since 2004, there has been only one composite set of Rules and Regulations for both jurisdictions. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) ("the old Rules" or "the former Rules") governed both jurisdictions, with references to the appropriate civil law nomenclature differences between them. Scottish Employment Tribunal practice follows Scots civil law which is distinctly different from the practice followed in England and Wales.

The current Regulations are the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237) ("the Rules" or "the 2013 Rules") which, with effect from 29 July 2013 repealed and replaced the former Rules.

 

The 2013 Rules set out the main objectives and procedures of the Employment Tribunals. The 2013 Rules brought about some significant changes to the former Rules, which are as follows:

The Employment Tribunal must, where appropriate and with the agreement of the parties, encourage the parties to use Acas to attempt a settlement of the claim, or to use some other form of judicial mediation as a way of resolving disputes.

The Employment Judge must consider the documents in each case "to confirm whether there are arguable complaints and defences within the jurisdiction of the Tribunal." If the Judge forms the view that the claim or response has no reasonable prospect of success, the Judge may dismiss either the whole of the claim or response or a part of the claim or response.

Preliminary hearings replaced case management discussions and pre-hearing reviews. At a preliminary hearing, an Employment Tribunal may, among other things, consider the claim with the parties and make case management orders or directions, and determine any preliminary issues and make a deposit order.

A lead case procedure was introduced under the 2013 Rules. This means that when an Employment Tribunal has identified "two or more claims that give rise to common or related issues of fact or law," one or more of those claims can be designated as a lead claim, while the others are sisted (put on hold or held back) until the lead case has been decided. The related cases will be bound by any decisions in the lead case. However, a party may apply for an order that such a decision does not apply and is not binding to a particular related case. 

Under the provisions of Rule 2, an Employment Tribunal may regulate its procedure as it sees fit within the framework of the 2013 Rules. Rule 2 states that "The overriding objective of [the Rules] is to enable ... Tribunals to deal with cases fairly and justly," and includes, as far as practicable:

  • Ensuring that the parties are on an equal footing.

  • Dealing with cases in ways that are proportionate to the complexity and importance of the issues.

  • Avoiding unnecessary formality and seeking flexibility in the proceedings.

  • Avoiding delay, so far as compatible with proper consideration of the issues.

  • Saving expense.

 

An Employment Tribunal is required to give effect to the overriding objective in its interpretation and exercise of the power given to it under the 2013 Rules. Moreover, the parties and their representatives are required to assist the Employment Tribunal to implement the overriding objective and must "co-operate generally with each other and with the Tribunal."

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Gavin Booth

The Law at Work

19 Etive Court

Cumbernauld

Lanarkshire

Scotland

G67 4JA

The Law at Work is a not-for-profit Social Enterprise operated by Gavin Booth, specialising in employment rights advice, guidance, support and non-solicitor representation at Employment Tribunal and Regulatory Hearings in Central Scotland.

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Regulated claims management: The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI 2001/544) (article 89O) excludes a number of activities from regulated claims management, including an activity carried on by a charity or not-for-profit body. The Law at Work is a not-for-profit Social Enterprise and as such is exempt from regulation by the Financial Conduct Authority.

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