The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013

Made: 28th May 2013

Laid before Parliament: 31st May 2013

Coming into force

The Secretary of State, in exercise of the powers conferred by section 24(2) of the Health and Safety at Work etc. Act 1974 , sections 1(1), 4(6) and (6A), 7(1), (3), (3ZA), (3A), (3AA), (3AB), (3B), (3C) and (5), 7A(1) and (2), 7B(1) and (2), 9(1) and (2), 10(2), (5), (6) and (7), 10A(1), 11(1), 12(2), 13, 13A, 19, and 41(4) of the Employment Tribunals Act 1996 , paragraph 37 of Schedule 6 to the Scotland Act 1998 , and paragraph 32 of Schedule 9 to the Government of Wales Act 2006 , makes the following Regulations.

The Secretary of State has consulted with the Administrative Justice and Tribunals Council, and that Council has consulted with the Scottish Committee and the Welsh Committee, in accordance with paragraph 24 of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 .

Citation and commencement

1

• (1) These Regulations may be cited as the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ...

• (2) This regulation and regulations 3 and 11 come into force on 1st July 2013 and the remainder of these Regulations (including the Schedules) come into force on 29th July 2013.

Revocation

2

Subject to the savings in regulation 15 the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 are revoked.

Interpretation

3

... In these Regulations—

• “2004 Regulations” means the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004;

• “appointing office holder” means, in England and Wales, the Lord Chancellor, and in Scotland, the Lord President;

• “Employment Tribunals Act” means the Employment Tribunals Act 1996;

• “Lord President” means the Lord President of the Court of Session;

• “national security proceedings” means proceedings in which a direction or order under rule 93 of the Employment Tribunal Procedure Rules 2024 is in force;

• “President” means either of the two presidents appointed from time to time in accordance with regulation 5(1);

• “Regional Employment Judge” means a person appointed or nominated in accordance with regulation 6(1) or (2);

• “Senior President of Tribunals” means the person appointed in accordance with section 2 of the Tribunals, Courts and Enforcement Act 2007;

• “Tribunal” means an employment tribunal established in accordance with regulation 4 and, in relation to any proceedings, means the Tribunal responsible for the proceedings in question, whether performing administrative or judicial functions;

• “Vice President” means a person appointed or nominated in accordance with regulation 6(3) or (4).

Establishment of employment tribunals

4

There are to be tribunals known as employment tribunals.

President of Employment Tribunals

5

• (1) There shall be a President of Employment Tribunals, responsible for Tribunals in England and Wales, and a President of Employment Tribunals, responsible for Tribunals in Scotland, appointed by the appointing office holder.

• (2) A President shall be—

• (a) a person who satisfies the judicial-appointment eligibility condition within the meaning of section 50 of the Tribunals, Courts and Enforcement Act 2007 on a 5-year basis;

• (b) an advocate or solicitor admitted in Scotland of at least five years standing; or

• (c) a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least five years standing.

• (3) A President may at any time resign from office by giving the appointing officer holder notice in writing to that effect.

• (4) The appointing officer holder may remove a President from office on the ground of inability or misbehaviour, or if the President is made bankrupt or makes a composition or arrangement with his creditors.

• (5) Where a President is unable to carry out the functions set out in these Regulations, those functions may be discharged by a person nominated by the appointing office holder (save that any nomination in relation to England and Wales shall be made by the Lord Chief Justice following consultation with the Senior President of Tribunals, rather than by the Lord Chancellor).

• (6) 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 regulation.

Regional Employment Judges and the Vice President

6

• (1) The Lord Chancellor may appoint Regional Employment Judges.

• (2) The President (England and Wales) or the Regional Employment Judge for an area may nominate an Employment Judge to discharge the functions of the Regional Employment Judge for that area.

• (3) The Lord President may appoint a Vice President.

• (4) The President (Scotland) or the Vice President may nominate an Employment Judge to discharge the functions of the Vice President.

• (5) Appointments and nominations under this regulation shall be from the salaried Employment Judges on the panel referred to in regulation 8(2)(a).

Responsibilities of the Presidents, Regional Employment Judges and Vice President

7

• (1) The President shall, in relation to the area for which the President is responsible, 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) The President (England and Wales) may direct Regional Employment Judges, and the President (Scotland) may direct the Vice President, to take action in relation to the fulfilment of the responsibilities in paragraph (1) and the Regional Employment Judges and Vice President shall follow such directions.

Panels of members for tribunals

8

• (1) There shall be three panels of members for the Employment Tribunals (England and Wales) and three panels of members for the Employment Tribunals (Scotland).

• (2) The panels of members shall be—

• (a) a panel of Employment Judges who—

• (i) satisfy the criteria set out in regulation 5(2) and are appointed by the appointing office holder; or

• (ii) are able to act as Employment Judges by virtue of paragraph (2A) or (2B);

• (b) a panel of persons appointed by the Lord Chancellor after consultation with organisations or associations representative of employees; and

• (c) a panel of persons appointed by the Lord Chancellor after consultation with organisations or associations representative of employers.

• (2A) A relevant tribunal judge may act as an Employment Judge if the conditions in paragraph (2C) are satisfied.

• (2B) A relevant judge may act as an Employment Judge if the conditions in paragraph (2C) are satisfied and—

• (a) the relevant judge consents; and

• (b) unless the relevant judge is the Lord Chief Justice of England and Wales, the appropriate consent has been given.

• (2C) The conditions are—

• (a) the judge is nominated by the Senior President of Tribunals; and

• (b) the President who is responsible for the panel the judge will act as a member of consents to the judge acting in a particular case.

• (2D) The relevant President must consult the other President before consenting under paragraph (2C)(b) to any individual judge acting for the first time as a member of the panel for which the relevant President is responsible.

• (2E) A person who has been appointed to one panel of Employment Judges may act as a member of the other panel of Employment Judges if—

• (a) the person is nominated by the Senior President of Tribunals; and

• (b) the Presidents responsible for both panels consent to the person acting for such period as the Presidents shall specify.

• (2F) Consent under paragraph (2E)(b) can be withdrawn at any time by either President.

• (2G) In paragraph (2B)(b) “the appropriate consent” means—

• (a) the consent of the Lord Chief Justice of England and Wales where the relevant judge is—

• (i) the Master of the Rolls or an ordinary judge of the Court of Appeal in England and Wales;

• (ii) the President of the Queen’s Bench Division or Family Division, or the Chancellor, of the High Court in England and Wales;

• (iii) a puisne judge of the High Court in England and Wales;

• (iv) a circuit judge;

• (v) a district judge in England and Wales;

• (vi) a District Judge (Magistrates’ Courts);

• (vii) a deputy judge of the High Court in England and Wales;

• (viii) a Recorder;

• (ix) a Deputy District Judge (Magistrates’ Courts);

• (x) a deputy district judge appointed under section 8 of the County Courts Act 1984 or section 102 of the Senior Courts Act 1981;

• (xi) the holder of an office listed in the first column of the table in section 89(3C) of the Senior Courts Act 1981 (senior High Court Masters etc);

• (xii) the holder of an office listed in column 1 of Part 2 of Schedule 2 to that Act (High Court Masters etc); or

• (xiii) the Judge Advocate General or a person appointed under section 30(1)(a) or (b) of the Courts-Martial (Appeals) Act 1951 (assistants to the Judge Advocate General);

• (b) the consent of the Lord President where the relevant judge is—

• (i) a sheriff; or

• (ii) a summary 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.

• (2H) In this regulation “relevant judge” means a person who—

• (a) is the Lord Chief Justice of England and Wales, the Master of the Rolls or an ordinary judge of the Court of Appeal in England and Wales (including the vice-president, if any, of either division of that Court);

• (b) is the President of the Queen’s Bench Division or Family Division, or the Chancellor, of the High Court in England and Wales;

• (c) is a Lord Justice of Appeal in Northern Ireland;

• (d) is a puisne judge of the High Court in England and Wales or Northern Ireland;

• (e) is a circuit judge;

• (f) is a sheriff in Scotland;

• (g) is a summary sheriff;

• (h) is a county court judge in Northern Ireland;

• (i) is a district judge in England and Wales or Northern Ireland;

• (j) is a District Judge (Magistrates’ Courts);

• (k) is a deputy judge of the High Court in England and Wales;

• (l) is a Recorder;

• (m) is a Deputy District Judge (Magistrates’ Courts);

• (n) is a deputy district judge appointed under section 8 of the County Courts Act 1984 or section 102 of the Senior Courts Act 1981;

• (o) holds an office listed in the first column of the table in section 89(3C) of the Senior Courts Act 1981 (senior High Court Masters etc);

• (p) holds an office listed in column 1 of Part 2 of Schedule 2 to that Act (High Court Masters etc); or

• (q) is the Judge Advocate General or a person appointed under section 30(1)(a) or (b) of the Courts-Martial (Appeals) Act 1951 (assistants to the Judge Advocate General).

• (2I) References in paragraph (2H)(d) to (j) to office-holders do not include deputies or temporary office-holders.

• (3) Members of the panels shall hold and vacate office in accordance with the terms of their appointment, but may resign from office by written notice to the person who appointed them under paragraph (2), and any member who ceases to hold office shall be eligible for reappointment.

• (4) The President may establish further specialist panels of members referred to in paragraph (2) ....

Composition of tribunals

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National security proceedings – panel of members and composition of tribunals

10

• (1) The President shall select—

• (a) a panel of persons from the panel referred to in regulation 8(2)(a);

• (b) a panel of persons from the panel referred to in regulation 8(2)(b); and

• (c) a panel of persons from the panel referred to in regulation 8(2)(c),

who may act in national security proceedings.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Practice directions

11

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Power to prescribe

12

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Application of Schedules 1 to 3

13

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Register and proof of judgments

14

• (1) The Lord Chancellor shall maintain a register containing a copy of all judgments and written reasons issued by a Tribunal which are required to be entered in the register under the Employment Tribunal Procedure Rules 2024.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) A document purporting to be certified by a member of staff of a Tribunal 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.

Transitional provisions

15

• (1) Subject to paragraphs (2) and (3), 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 respondent receives from a Tribunal a copy of the claim form before 29th July 2013, rules 23 to 25 of Schedule 1 do not apply to the proceedings and rule 7 of Schedule 1 to the 2004 Regulations continues to apply.

• (3) Where in accordance with Schedules 3 to 5 of the 2004 Regulations, a notice of appeal was presented to a Tribunal before 29th July 2013, Schedule 1 does not apply to the proceedings and Schedule 3, 4 or 5, as appropriate, of the 2004 Regulations continues to apply.

SCHEDULE 1 — THE EMPLOYMENT TRIBUNALS RULES OF PROCEDURE

INTRODUCTORY AND GENERAL

Interpretation

1

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Overriding objective

2

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Alternative dispute resolution

3

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Time

4

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Extending or shortening time

5

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Irregularities and non-compliance

6

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Presidential Guidance

7

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STARTING A CLAIM

Presenting the claim

8

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Multiple claimants

9

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Rejection: form not used or failure to supply minimum information

10

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Rejection: absence of Tribunal fee or remission application

11

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Rejection: substantive defects

12

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Reconsideration of rejection

13

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Protected disclosure claims: notification to a regulator

14

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THE RESPONSE TO THE CLAIM

Sending claim form to respondents

15

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Response

16

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Rejection: form not used or failure to supply minimum information

17

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Rejection: form presented late

18

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Reconsideration of rejection

19

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Applications for extension of time for presenting response

20

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Effect of non-presentation or rejection of response, or case not contested

21

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Notification of acceptance

22

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EMPLOYER’S CONTRACT CLAIM

Making an employer’s contract claim

23

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Notification of employer’s contract claim

24

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Responding to an employer’s contract claim

25

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INITIAL CONSIDERATION OF CLAIM FORM AND RESPONSE

Initial consideration

26

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Dismissal of claim (or part)

27

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Dismissal of response (or part)

28

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CASE MANAGEMENT ORDERS AND OTHER POWERS

Case management orders

29

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Applications for case management orders

30

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Disclosure of documents and information

31

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Requirement to attend to give evidence

32

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Evidence from other EU Member States