Employment Tribunals Act 1996

PART I — Employment Tribunals

Introductory

Requirement to contact ACAS before instituting proceedings

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• (1) The Secretary of State may by regulations make provision for the establishment of tribunals to be known as employment tribunals.

• (2) Regulations made wholly or partly under section 128(1) of the Employment Protection (Consolidation) Act 1978 and in force immediately before this Act comes into force shall, so far as made under that provision, continue to have effect (until revoked) as if made under subsection (1) . . ..

Jurisdiction

Enactments conferring jurisdiction on industrial tribunals

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Employment 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.

The Appeal Tribunal.

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• (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 employment 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 employment 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.

Composition of a tribunal

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• (1) An employment tribunal is, for the purpose of deciding any given matter, to be composed of a member or members chosen by the Senior President of Tribunals.

• (2) The member, or each member, chosen must belong to a panel of members of employment tribunals appointed in accordance with regulations under section 1(1).

• (3) The Senior President of Tribunals (or any person to whom the function under subsection (1) is delegated)—

• (a) must act in accordance with regulations under subsection (4);

• (b) may choose themselves (if eligible in accordance with regulations under section 1(1)).

• (4) The Lord Chancellor must by regulations make provision, in relation to every matter that may fall to be decided by an employment tribunal, for determining the number of members who are to compose the tribunal.

• (5) Where regulations under subsection (4) provide for a tribunal to be composed of a single member, the regulations must provide for that member to be an Employment Judge.

• (6) Where regulations under subsection (4) provide for a tribunal to be composed of more than one member, the regulations—

• (a) must provide for at least one of those members to be an Employment Judge,

• (b) must make provision for determining how many (if any) of the other members are to be Employment Judges and how many (if any) are to be members who are not Employment Judges, and

• (c) if the tribunal is to include one or more members who are not Employment Judges, may make provision for determining what qualifications (if any) that member or any of those members must have.

• (7) A duty under subsection (4) or (6) to provide for the determination of anything may be discharged by providing for the thing to be determined by the Senior President of Tribunals or the President of Employment Tribunals in accordance with any provision made under that subsection.

• (8) The power under subsection (6)(c) may be exercised by giving the Senior President of Tribunals or the President of Employment Tribunals power to determine what qualifications are required in accordance with any provision made by the regulations.

• (9) Where a tribunal is to be composed of more than one member, the tribunal may proceed in the absence of one or more of the members chosen to compose it if—

• (a) the parties to the case agree, and

• (b) at least one of the members who is present is an Employment Judge.

• (10) Where a person (other than an Employment Judge) is chosen as one of the members composing a tribunal but does not have a qualification required by virtue of subsection (6)(c), the tribunal may still proceed with that person as a member if the parties to the case agree.

• (11) Before making regulations under this section, the Lord Chancellor must consult the Senior President of Tribunals.

• (12) In this section—

• “President of Employment Tribunals”—in relation to employment tribunals in England and Wales, means the President of Employment Tribunals (England and Wales), andin relation to employment tribunals in Scotland, means the President of Employment Tribunals (Scotland);

• “qualification” includes experience.

Remuneration, fees and allowances

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• (1) The Lord Chancellor may pay to—

• (a) the President of the Employment Tribunals (England and Wales),

• (b) the President of the Employment Tribunals (Scotland), . . .

• (c) any person who is an Employment Judge on a full-time basis, and

• (d) any person who is a legal officer appointed in accordance with such regulations,

such remuneration and such allowances as he may with the consent of the Treasury determine.

• (2) The Lord Chancellor may pay to—

• (a) members of employment tribunals,

• (b) any assessors appointed for the purposes of proceedings before employment tribunals, and

• (c) any persons required for the purposes of section 131(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 Lord Chancellor 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 employment tribunals.

Procedure

Conduct of hearings

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• (1) A person may appear before an employment 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) Nothing in any of sections 1 to 15 of and schedule 1 to the Arbitration (Scotland) Act 2010 or Part I of the Arbitration Act 1996 does not apply applies to any proceedings before an employment tribunals.

Industrial tribunal procedure regulations

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Procedure Rules (see section 37QA) are to govern the practice and procedure to be followed in employment tribunals.

Procedure in contract cases

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• (1) Where in proceedings brought by virtue of section 3 an employment 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 employment 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 employment 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.

Pre-hearing reviews and preliminary matters

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• (1) If Procedure Rules authorise an employment tribunal to carry out a preliminary hearing, Procedure Rules may make provision for enabling such powers as may be prescribed by the Rules to be exercised in connection with the hearing.

• (2) Such Rules may in particular include provision—

• (a) for authorising any tribunal carrying out a preliminary hearing ... to make, in circumstances specified in the Rules, an order requiring a party to the proceedings in question... to pay a deposit ... as a condition of—

• (i) continuing to participate in those proceedings, or

• (ii) pursuing any specified allegations or arguments, 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.

• (2ZA) Procedure Rules of the kind mentioned in subsection (2)(a) may not provide for a deposit of an amount exceeding £1,000.

• (2A) Procedure Rules may not enable a power of striking out to be exercised in a preliminary hearing on a ground which does not apply outside a preliminary hearing.

• (3) The Lord Chancellor may from time to time by order substitute for the sum specified in subsection (2ZA) such other sum as is specified in the order.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) In this section “preliminary hearing” means a hearing in any proceedings before an employment tribunal which takes place at a time before a hearing held for the purpose of determining them.

National security etc

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• (1) If on a complaint under—

• (a) 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),, ...

• (c) regulation 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010 (detriment connected with prohibited list) or

• (d) regulation 4 of the Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018 (complaint to employment tribunal),

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) ... 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 Employment Judge in relation to particular proceedings if he considers it expedient in the interests of national security.

• (5) ... 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; or

• (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.

• (6) ... 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), ... 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), ... 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).

• (10) Regulations under this section are to be made by the Lord Chancellor.

Restriction of publicity in cases involving sexual misconduct

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• (1) Procedure Rules 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 employment 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 Sexual Offences (Amendment) Act 1992,

• “restricted reporting order” means an order—made in exercise of a power conferred by Procedure Rules of the kind mentioned in subsection (1)(b), andprohibiting 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,