The Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020

Made: 3rd January 2020

Coming into operation: 27th January 2020

The Department for the Economy[^f00001], in exercise of the powers conferred by Article 26(1) of the Health and Safety at Work (Northern Ireland) Order 1978[^f00002], Articles 3(1) and (3)[^f00003], 6(6)[^f00004] and (6A)[^f00005], 9(1), (3)[^f00006], (3ZA)[^f00007], (3A), (3AA), (3AB)[^f00008], (3B), (3C)[^f00009] and (5), 9A(1) and (2)[^f00010], 11(1)[^f00011], (2) and (4)[^f00012], 12(2), (5), (6) and (7), 12A(1)[^f00013], 13(1) and (1B)[^f00014], 14(2), 15[^f00015], 15A[^f00016], 21[^f00017], 21A(9)[^f00018] and 25(5) of the Industrial Tribunals (Northern Ireland) Order 1996[^f00019], and Articles 81[^f00020], 82(5)[^f00021] and (7), 84(1), (2)[^f00022], (2A)[^f00023], (2B)[^f00024], (3) and (5), 84A[^f00025], 84B(1) and (2)[^f00026], 85A, 85B[^f00027], 88A(9)[^f00028] and 104(3) of the Fair Employment and Treatment (Northern Ireland) Order 1998[^f00029], and now vested in it[^f00030], makes the following Regulations:

Citation and commencement

1

• (1) These Regulations may be cited as the Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020 and the Rules of Procedure contained in Schedules 1 to 3 may be referred to, respectively as—

• (a) the Industrial Tribunals and Fair Employment Tribunal Rules of Procedure 2020;

• (b) the Industrial Tribunals (National Security) Rules of Procedure 2020; and

• (c) the Industrial Tribunals (Equal Value) Rules of Procedure 2020.

• (2) These Regulations shall come into operation on 27th January 2020.

Revocations and consequential amendments

2

• (1) Subject to the savings in regulation 18, the Regulations listed in Part 1 of Schedule 4 are revoked.

• (2) The consequential amendments in Part 2 of Schedule 4 shall have effect.

Interpretation

3

Except in the Schedules which are subject to the definitions contained in the Schedules, in these Regulations—

• “employee panel” means a panel of persons appointed by the Department after consultation with such organisations or associations of organisations representative of employees as it sees fit;

• “employer panel” means a panel of persons appointed by the Department after consultation with such organisations or associations of organisations representative of employers as it sees fit;

• “employment judge” means one of—the President;the Vice-President;a member of the panel of employment judges,and in relation to particular proceedings it means the employment judge to whom the proceedings have been referred by the President or the Vice-President;

• “Fair Employment and Treatment Order” means the Fair Employment and Treatment (Northern Ireland) Order 1998;

• “Fair Employment Tribunal” means the Fair Employment Tribunal for Northern Ireland established in accordance with regulation 5;

• “industrial tribunal” means an industrial tribunal established in accordance with regulation 4;

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

• “national security proceedings” means proceedings in relation to which a direction is given, or an order is made, under rule 91 or 92 of Schedule 1;

• “panel of employment judges” means a panel of persons appointed in accordance with regulation 7(1)(a);

• “President” means the President of the Industrial Tribunals and the Fair Employment Tribunal appointed under Article 82(1)(a) of the Fair Employment and Treatment Order or the person nominated by the Northern Ireland Judicial Appointments Commission under Article 82(6) of that Order to discharge for the time being the functions of the President;

• “Secretary” means a person for the time being appointed to act as the Secretary of the tribunal (and any function of the Secretary may be performed by a person acting with the authority of the Secretary);

• “tribunal” means—any industrial tribunal or Fair Employment Tribunal; andin relation to particular proceedings, the industrial tribunal or Fair Employment Tribunal to which those proceedings relate;

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

• “Vice-President” means the Vice-President of the Industrial Tribunals and the Fair Employment Tribunal appointed under Article 82(1)(b) of the Fair Employment and Treatment Order or the person nominated by the Northern Ireland Judicial Appointments Commission under Article 82(6) of that Order to discharge for the time being the functions of the Vice-President.

Industrial Tribunals

4

There shall continue to be tribunals known as industrial tribunals, established in accordance with Article 3 of the Industrial Tribunals Order, for the purposes of exercising the jurisdiction conferred on them by or by virtue of that Order or any other statutory provision.

The Fair Employment Tribunal for Northern Ireland

5

• (1) There shall continue to be a tribunal known as the Fair Employment Tribunal for Northern Ireland, established in accordance with Article 81(1) of the Fair Employment and Treatment Order, for the purposes of exercising the jurisdiction conferred on it by that Order or any other statutory provision.

• (2) The jurisdiction of the Fair Employment Tribunal shall be exercised by a single tribunal or, if the President or the Vice-President so directs, by two or more tribunals.

• (3) Where, under Article 85 of the Fair Employment and Treatment Order, the President or Vice-President has directed that a matter that would otherwise fall to be determined by an industrial tribunal shall be heard and determined by the Fair Employment Tribunal, any function of an industrial tribunal specified in these Regulations and in Schedules 1 to 3 may be carried out by the Fair Employment Tribunal as though it were an industrial tribunal constituted under these Regulations.

Composition of tribunals

6

Tribunals shall consist of three panels of members, namely—

• (a) the panel of employment judges;

• (b) the employee panel; and

• (c) the employer panel.

Appointment of panel members

7

• (1) Members of panels of tribunals shall hold and vacate office in accordance with the terms of their appointment, as specified—

• (a) in the case of the panel of employment judges, by the Northern Ireland Judicial Appointments Commission with the agreement of the Department of Justice;

• (b) in the case of the employee panel and the employer panel, by the Department,

but no person shall be appointed under paragraph (1)(a) without meeting one of the qualifications in Article 82(2) of the Fair Employment and Treatment Order.

• (2) Members of panels may resign from office by written notice to the authority which appointed them under paragraph (1), and any member who ceases to hold office shall be eligible for reappointment.

Specialist panels: specialist knowledge

8

The President or the Vice-President may establish specialist panels consisting of persons from the panel of employment judges, the employee panel and the employer panel for use in proceedings where, in the opinion of the President or the Vice-President, specialist knowledge would be beneficial.

Specialist panels: national security proceedings

9

The President shall select three panels of persons who may act in national security proceedings before the industrial tribunal, namely—

• (a) a panel of persons from the panel of employment judges to act as employment judges in such cases;

• (b) a panel of persons from the employee panel to act as members in such cases; and

• (c) a panel of persons from the employer panel to act as members in such cases.

Composition of individual tribunals: general

10

• (1) Subject to paragraph (2), the President or the Vice-President shall select an employment judge for each tribunal, and that person shall determine proceedings alone.

• (2) Where the proceedings are to be determined by a tribunal comprising an employment judge and two other members, the President or the Vice-President, having selected the employment judge under paragraph (1), shall select—

• (a) one member from the employee panel and one member from the employer panel; or

• (b) one member from either of those panels if the parties consent to Fair Employment Tribunal proceedings being heard and determined by an employment judge and one other member only, or consent under Article 6(1) of the Industrial Tribunals Order.

• (3) The President or the Vice-President may select from the appropriate panel a substitute for a member previously selected to hear any proceedings.

• (4) This regulation does not apply in relation to national security proceedings before the industrial tribunal (see regulation 12).

Composition of individual tribunals: specialist knowledge

11

Where particular specialist knowledge would, in the opinion of the President or the Vice-President, be beneficial in determining proceedings, selections under regulation 10 may be made from the specialist panels described in regulation 8.

Composition of individual tribunals: national security proceedings

12

Where proceedings before an industrial tribunal or the Fair Employment Tribunal become national security proceedings, the President or the Vice-President shall—

• (a) select an employment judge from the panel referred to in regulation 9(a); and

• (b) where the proceedings are to be determined by a tribunal comprising an employment judge and two other members, select in addition one member respectively from each of the panels referred to in regulation 9(b) and (c).

Responsibilities of the President and the Vice-President

13

• (1) The President, or in the absence of the President the Vice-President, shall use the resources available to—

• (a) secure, so far as practicable, the speedy and efficient disposal of proceedings;

• (b) determine the allocation of proceedings between tribunals; and

• (c) determine where and when tribunals shall sit.

• (2) Subject to Article 82(6) of the Fair Employment and Treatment Order, where the President or the Vice-President is unable to exercise the functions under regulations 5(2) and (3), 10(1), (2) and (3), 12 and paragraph (1)(c) and Articles 17 and 85 of the Fair Employment and Treatment Order, the President or the Vice-President may direct that those functions may be exercised by a person appointed to the panel of employment judges.

Practice directions

14

• (1) The President may make, vary or revoke practice directions about the procedure of the tribunals, including practice directions about the exercise by tribunals of powers under these Regulations or the Schedules.

• (2) Practice directions may make different provision for different cases or different types of proceedings.

• (3) Any practice direction made, varied or revoked shall be published by the President in an appropriate manner to bring it to the attention of the persons to whom it is addressed.

Power to prescribe

15

• (1) The Department may prescribe—

• (a) one or more versions of a form which shall be used by claimants to start proceedings in a tribunal;

• (b) one or more versions of a form which shall be used by respondents to respond to a claim before a tribunal; and

• (c) that the provision of certain information on the prescribed forms is mandatory.

• (2) It is not necessary to use a form prescribed under paragraph (1) if the proceedings are—

• (a) referred to a tribunal by a court;

• (b) proceedings in which a tribunal will be exercising its appellate jurisdiction; or

• (c) proceedings brought by the employer under Article 43 of the Employment Rights (Northern Ireland) Order 1996[^f00031].

• (3) The Department shall publish the prescribed forms in an appropriate manner to bring them to the attention of prospective claimants, respondents and their advisers.

Register

16

• (1) The Secretary shall maintain a register which shall be accessible to the public without charge at all reasonable hours.

• (2) The register, which may be kept by means of a computer, shall contain a copy of all judgments and written reasons required to be entered in the register by the rules in Schedules 1 to 3.

• (3) A document purporting to be certified by the Secretary to be a true copy of an entry of a judgment in the register shall, unless the contrary is proved, be sufficient evidence of the document and its contents.

Application of Schedules 1 to 3

17

• (1) Subject to paragraph (2), Schedule 1 applies to all proceedings before a tribunal except where separate rules of procedure made under the provisions of any statutory provision are applicable.

• (2) Schedules 2 and 3 apply to modify the rules in Schedule 1 in relation, respectively, to proceedings which are—

• (a) national security proceedings;

• (b) proceedings which involve an equal value claim (as defined in rule 1 of Schedule 3).

Transitional provisions

18

• (1) Subject to paragraphs (2) to (5), these Regulations and the Rules of Procedure contained in Schedules 1 to 3 apply in relation to all proceedings to which they relate.

• (2) Where a claim is started by presenting a completed claim form, in accordance with rule 9(1) of Schedule 1, before 27th February 2020—

• (a) rule 9(3)(b) shall not apply;

• (b) rule 11(1)(b) shall apply only to a claim form which does not include the information specified in rule 9(3)(a) or (c) and shall not apply to a claim form which does not include the information specified in rule 9(3)(b);

• (c) rule 11(1)(c)(iii) shall not apply;

• (d) rule 11(2)(b) shall not apply.

• (3) Where the Secretary sends a copy of a tribunal claim to a respondent before 27th January 2020, rules 21 to 23 of Schedule 1 shall not apply to the proceedings and rule 7 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005[^f00032] continues to apply.

• (4) Where in accordance with Schedules 4 to 6 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, a notice of appeal is presented to a tribunal before 27th January 2020, Schedule 1 shall not apply to the proceedings and Schedule 4, 5 or 6, as appropriate, to those Regulations continues to apply.

• (5) Where in accordance with the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, a notice of appeal is presented under Schedule 2 or a notice of application was presented under Schedule 3 before 27th January 2020, Schedule 1 shall not apply to the proceedings and Schedule 2 or Schedule 3, as appropriate, to those Regulations continues to apply.

SCHEDULE 1 — THE INDUSTRIAL TRIBUNALS AND FAIR EMPLOYMENT TRIBUNAL RULES OF PROCEDURE 2020

PART 1 — INTRODUCTORY AND GENERAL

Interpretation

1

• (1) In these Rules—

• “Agency” means the Labour Relations Agency;

• “case management order” means an order or decision of any kind in relation to the conduct of proceedings, not including the determination of any issue which would be the subject of a judgment;

• “claim” means any proceedings before a tribunal making a complaint;

• “claimant” means the person bringing the claim;

• “Commission” means the Equality Commission for Northern Ireland;

• “complaint” means anything that is referred to as a claim, complaint, reference, application or appeal in any statutory provision which confers jurisdiction on a tribunal;

• “disclosure”, for the purposes of rules 24 and 27, means stating that a document exists or has existed;

• “early conciliation certificate” means a certificate issued by the Agency in accordance with the Industrial Tribunals and Fair Employment Tribunal (Early Conciliation: Exemptions and Rules of Procedure) Regulations (Northern Ireland) 2020[^f00033];

• “early conciliation exemption” means an exemption contained in regulation 3(1) of the Industrial Tribunals and Fair Employment Tribunal (Early Conciliation: Exemptions and Rules of Procedure) Regulations (Northern Ireland) 2020;

• “early conciliation number” means the unique reference number which appears on an early conciliation certificate;

• “electronic communication” has the meaning given to it by section 4(1) of the Electronic Communications (Northern Ireland) Act 2001[^f00034];

• “employee panel” means a panel of persons appointed by the Department after consultation with such organisations or associations of organisations representative of employees as it sees fit;

• “employer panel” means a panel of persons appointed by the Department after consultation with such organisations or associations of organisations representative of employers as it sees fit;

• “employee’s contract claim” means a claim brought by an employee in accordance with Articles 3 and 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994[^f00035];

• “employer’s contract claim” means a claim brought by an employer in accordance with Articles 4 and 8 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994;

• “employment judge” means one of— the President; the Vice-President; a member of the panel of employment judges, and in relation to particular proceedings it means the employment judge to whom the proceedings have been referred by the President or the Vice-President;

• “Employment Rights Order” means the Employment Rights (Northern Ireland) Order 1996[^f00036];

• “Fair Employment and Treatment Order” means the Fair Employment and Treatment (Northern Ireland) Order 1998;