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

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Statutory Instruments

# 2013 No. 1237

Employment Tribunals

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

Made

28th May 2013

Laid before Parliament

31st May 2013

Coming into force

for the purpose of regulations 1, 3 and 11

1st July 2013

for all other purposes

29th July 2013

The Secretary of State, in exercise of the powers conferred by section 24(2) of the Health and Safety at Work etc. Act 1974                           F1, 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 F2, paragraph 37 of Schedule 6 to the Scotland Act 1998 F3, and paragraph 32 of Schedule 9 to the Government of Wales Act 2006 F4, 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 F5.                        

F11974 c. 37.

F21996 c. 17; by virtue of section 1 of the Employment Rights (Dispute Resolution) Act 1998 (c. 8) industrial tribunals were renamed employment tribunals and references to “industrial tribunal” and “industrial tribunals”                              in any enactment were substituted with “employment tribunal” and “employment tribunals”. Section 4(6) was amended by the Employment                              Rights (Dispute Resolution) Act 1998, Schedule 1, paragraph 12(4), and by the Tribunals, Courts and Enforcement Act 2007 (c. 15), **Schedule 8**, paragraphs 35 and 37. Section 4(6A) was inserted by the Employment Rights (Dispute Resolution) Act 1998, section 3(6), and amended by the                              Tribunals, Courts and Enforcement Act 2007, Schedule 8, paragraphs 35 and 37. Section 7(3)(f)(i) was repealed by the Employment                              Rights (Dispute Resolution) Act 1998, Schedule 1, paragraph 14(2); section 7(3)(ia) was inserted by the Employment Act 2002 (c. 22), **section 24(1)**; and section 7(3)(h) was amended by the Equality Act 2010 (c. 15), **Schedule 26**, paragraphs 27 and 29. Section 7(3ZA) was inserted by the Employment Act 2002, section 25. Section 7(3A) to (3C) was inserted by the Employment                              Rights (Dispute Resolution) Act 1999, section 2, and section 7(3A) was then substituted by the Employment Act 2002, section                              26. Section 7(3AA) and (3AB) was inserted by the Employment Act 2008 (c. 24), **section 4**. Section 7A was inserted by the Employment Act 2002, section 27, and section 7A(1) was amended by the Tribunals Courts and                              Enforcement Act 2007, Schedule 8, paragraphs 35 and 41. Section 7B was inserted by the Tribunals, Courts and Enforcement Act                              2007, Schedule 8, paragraphs 35 and 42. Sections 10 and 10A were substituted by the Employment Relations Act 1999 (c. 26), **Schedule 8**, paragraph 3, and section 10(6) was then substituted by the Employment Relations Act 2004 (c. 24), **section 36**. Section 12 was amended by the Equality Act 2010, Schedule 26, paragraphs 27 and 30. Section 13 was amended by the Employment                              Act 2002, section 22(1). Section 13(2) was amended by the Employment Relations Act 1999, section 44, Schedule 4, paragraph                              4 of Part III, and Schedule 9. Section 13A was inserted by the Employment Act 2002, section 22(2). Section 19(1) was renumbered                              as such by the Employment Act 2002, section 24(4), and was amended by sections 24(3), 53 and 54 of, and Schedule 7, paragraph                              23(1) and (3), and Schedule 8 to, that Act.

F31998 c. 46.

F42006 c. 32.

F52007 c. 15.

## Citation and commencementE+W+S

1.—(1) These Regulations may be cited as the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and the                     Rules of Procedure contained in Schedules 1, 2 and 3 may be referred to, respectively, as—                  

(a)the Employment Tribunals Rules of Procedure 2013;                  

(b)the Employment Tribunals (National Security) Rules of Procedure 2013; and                  

(c)the Employment Tribunals (Equal Value) Rules of Procedure 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.                  

## RevocationE+W+S

2.  Subject to the savings in regulation 15 the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 F6 are revoked.                  

## InterpretationE+W+S

3.  Except in the Schedules which are subject to the definitions contained in the Schedules, 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 relation to which a direction is given, or an order is made, under rule 94 of Schedule 1;                  

“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 tribunalsE+W+S

4.  There are to be tribunals known as employment tribunals.                  

## Responsibilities of the Presidents, Regional Employment Judges and Vice PresidentE+W+S

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.                  

## Composition of tribunalsE+W+S

9.—(1) Where proceedings are to be determined by a Tribunal comprising an Employment Judge and two other members, the President,                     Vice President or a Regional Employment Judge shall select—                  

(a)an Employment Judge; and                  

(b)one member from each of the panels referred to in regulation 8(2)(b) and (c),                  

and for all other proceedings shall select an Employment Judge.

(2) The President, Vice President or a Regional Employment Judge may select him or herself as the Employment Judge required under                     paragraph (1).                  

(3) The President, Vice President or a Regional Employment Judge 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 (see regulation 10(2)).

## National security proceedings – panel of members and composition of tribunalsE+W+S

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) Where proceedings become national security proceedings, the President, Vice President or a Regional Employment Judge shall—

(a)select an Employment Judge from the panel referred to in paragraph (1)(a) and may select him or herself; 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 from each of the panels referred to in sub-paragraphs (b) and (c) of paragraph (1).                  

## Practice directionsE+W+S

11.—(1) The President may make, vary or revoke practice directions about the procedure of the Tribunals in the area for which the                     President is responsible, including—                  

(a)practice directions about the exercise by Tribunals of powers under these Regulations (including the Schedules); and                  

(b)practice directions about the provision by Employment Judges of mediation, in relation to disputed matters in a case that                        is the subject of proceedings, and may permit an Employment Judge to act as mediator in a case even though they have been                        selected to decide matters in that case.                  

(2) Practice directions may make different provision for different cases, different areas, 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 prescribeE+W+S

12.—(1) The Secretary of State 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 an employer under section 11 of the Employment Rights Act 1996 F8.                  

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

## Transitional provisionsE+W+S

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.                  

Jo Swinson

 Parliamentary Under Secretary of State for Employment Relations and Consumer Affairs

 Department for Business, Innovation and Skills

28th May 2013

 Regulation 13(1)

## SCHEDULE 1E+W+STHE EMPLOYMENT TRIBUNALS RULES OF PROCEDURE

### *INTRODUCTORY AND GENERAL*E+W+S

#### Overriding objectiveE+W+S

#### Alternative dispute resolutionE+W+S

#### TimeE+W+S

#### Extending or shortening timeE+W+S

#### Irregularities and non-complianceE+W+S

#### Presidential GuidanceE+W+S

### *STARTING A CLAIM*E+W+S

### *THE RESPONSE TO THE CLAIM*E+W+S

#### Sending claim form to respondentsE+W+S

#### Rejection: form not used or failure to supply minimum informationE+W+S

#### Rejection: form presented lateE+W+S

#### Applications for extension of time for presenting responseE+W+S

#### Notification of acceptanceE+W+S

### *EMPLOYER'S CONTRACT CLAIM*E+W+S

#### Making an employer's contract claimE+W+S

#### Notification of employer's contract claimE+W+S

#### Responding to an employer's contract claimE+W+S

### *INITIAL CONSIDERATION OF CLAIM FORM AND RESPONSE*E+W+S

#### Dismissal of claim (or part)E+W+S

#### Dismissal of response (or part)E+W+S

### *CASE MANAGEMENT ORDERS AND OTHER POWERS*E+W+S

#### Case management ordersE+W+S

#### Applications for case management ordersE+W+S

#### Disclosure of documents and informationE+W+S

#### Addition, substitution and removal of partiesE+W+S

#### Other personsE+W+S

#### Lead casesE+W+S

#### Striking outE+W+S

#### Unless ordersE+W+S

#### Deposit ordersE+W+S

#### Non-payment of feesE+W+S

### *RULES COMMON TO ALL KINDS OF HEARING*E+W+S

#### GeneralE+W+S

#### Written representationsE+W+S

#### WitnessesE+W+S

#### TimetablingE+W+S

#### Non-attendanceE+W+S

#### Conversion from preliminary hearing to final hearing and vice versaE+W+S

#### Majority decisionsE+W+S

### *WITHDRAWAL*E+W+S

#### End of claimE+W+S

#### Dismissal following withdrawalE+W+S

### *PRELIMINARY HEARINGS*E+W+S

#### Scope of preliminary hearingsE+W+S

#### Constitution of tribunal for preliminary hearingsE+W+S

#### When preliminary hearings shall be in publicE+W+S

### *FINAL HEARING*E+W+S

#### Scope of final hearingE+W+S

#### When final hearing shall be in publicE+W+S

### *DECISIONS AND REASONS*E+W+S

#### Decisions made without a hearingE+W+S

#### Decisions made at or following a hearingE+W+S

#### ReasonsE+W+S

#### Absence of Employment JudgeE+W+S

#### Consent orders and judgmentsE+W+S

#### When a judgment or order takes effectE+W+S

#### Time for complianceE+W+S

#### Copies of judgment for referring courtE+W+S

#### Correction of clerical mistakes and accidental slipsE+W+S

### *RECONSIDERATION OF JUDGMENTS*E+W+S

#### PrinciplesE+W+S

#### ApplicationE+W+S

#### ProcessE+W+S

#### Reconsideration by the Tribunal on its own initiativeE+W+S

### *COSTS ORDERS, PREPARATION TIME ORDERS AND WASTED COSTS ORDERS*E+W+S

#### DefinitionsE+W+S

#### Costs orders and preparation time ordersE+W+S

#### ProcedureE+W+S

#### The amount of a costs orderE+W+S

#### The amount of a preparation time orderE+W+S

#### When a wasted costs order may be madeE+W+S

#### Effect of a wasted costs orderE+W+S

#### ProcedureE+W+S

#### AllowancesE+W+S

#### Ability to payE+W+S

### *DELIVERY OF DOCUMENTS*E+W+S

#### Delivery to the TribunalE+W+S

#### Delivery to partiesE+W+S

#### Delivery to non-partiesE+W+S

#### Special casesE+W+S

#### Substituted serviceE+W+S

#### Date of deliveryE+W+S

#### Irregular serviceE+W+S

#### Correspondence with the Tribunal: copying to other partiesE+W+S

### *MISCELLANEOUS*E+W+S

#### ACASE+W+S

#### National security proceedingsE+W+S

#### Interim relief proceedingsE+W+S

#### Proceedings involving the National Insurance FundE+W+S

#### Collective agreementsE+W+S

#### Devolution issuesE+W+S

#### Transfer of proceedings between Scotland and England & WalesE+W+S

#### Transfer of proceedings from a courtE+W+S

#### Information to the Commission for Equality and Human RightsE+W+S

#### Application of this Schedule to levy appealsE+W+S

#### Application of this Schedule to appeals against improvement and prohibition noticesE+W+S

#### Application of this Schedule to appeals against unlawful act noticesE+W+S

 Regulation 13(2)

## SCHEDULE 2E+W+STHE EMPLOYMENT TRIBUNALS (NATIONAL SECURITY) RULES OF PROCEDURE

### Application of Schedule 2E+W+S

### Serving of documentsE+W+S

### Witness orders and disclosure of documentsE+W+S

### Special advocateE+W+S

### Reasons in national security proceedingsE+W+S

 Regulation 13(2)

## SCHEDULE 3E+W+STHE EMPLOYMENT TRIBUNALS (EQUAL VALUE) RULES OF PROCEDURE

### Application of Schedule 3E+W+S

### General power to manage proceedingsE+W+S

### Conduct of stage 1 equal value hearingE+W+S

### Standard orders for stage 1 equal value hearingE+W+S

### Involvement of independent expert in fact findingE+W+S

### Conduct of stage 2 equal value hearingE+W+S

### Standard orders for stage 2 equal value hearingE+W+S

### Final hearingE+W+S

### Duties and powers of the independent expertE+W+S

### Use of expert evidenceE+W+S

### Written questions to experts (including independent experts)E+W+S

### Procedural mattersE+W+S

### National security proceedingsE+W+S

## Explanatory Note

(This note is not part of the Regulations)

These Regulations replace the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (“the 2004 Regulations”). The rules of procedure in Schedules 1 to 3 replace the existing rules of procedure in the Employment Tribunals set out                        in Schedules 1 to 6 to the 2004 Regulations.                     

Regulations 4 to 6 provide for the establishment of Employment Tribunals and the appointment of the Presidents, the Vice President                        and Regional Employment Judges, and regulation 7 sets out the responsibilities of those office holders.                     

Regulations 8 and 9 detail who shall sit to determine proceedings in the Employment Tribunals and regulation 10 make special                        provision for the composition of Employment Tribunals when dealing with national security proceedings.                     

Regulation 11 gives each President power to make practice directions in relation to the area (either Scotland or England and                        Wales) for which the President is responsible.                     

Regulation 12 delegates to the Secretary of State the power to prescribe forms to be used by claimants and respondents in                        proceedings before an Employment Tribunal and regulation 12(2) lists the proceedings in which a prescribed form need not be                        used.                     

Regulation 13 provides that Schedule 1 to the Regulations is to apply to all proceedings before an Employment Tribunal. However,                        Schedule 1 is modified by Schedules 2 and 3 in relation to the proceedings to which those Schedules apply.                     

Regulation 14 makes provision for the maintenance of a register of judgments and written reasons issued by an Employment Tribunal.

Regulation 15 makes transitional provision in relation to the presentation of a response which contains an employer's contract                        claim and in relation to proceedings which were presented before 29th July 2013 and in respect of which Schedule 3, 4 or 5                        of the 2004 Regulations applied. Subject to those transitional provisions, these Regulations apply to all proceedings before                        the Employment Tribunals.                     

Schedule 1 sets out the rules of procedure for claims before the Employment Tribunals. Rule 1 sets out the definitions relevant                        to those rules.                     

Rule 2 provides that the overriding objective of the rules is to enable the Employment Tribunals to deal with cases fairly                        and justly.                     

Rules 4 and 5 contain provisions on the calculation of time and extending and shortening time limits.

Rule 7 provides for the publication by the Presidents of guidance on the exercise of powers in the rules.

Rule 8 sets out the requirements for the presentation of a claim in the Employment Tribunals and rule 10 provides that a claim                        shall be rejected by an Employment Tribunal if a prescribed form is not used or certain information is not contained in the                        claim.                     

Rule 11 provides that, if any enactment requires a claim to be accompanied by a fee or an application for a remission from                        that fee and a claim is presented without such a fee or application, then that claim shall be rejected.                     

Rule 12 provides that an Employment Judge may reject a claim if the Employment Tribunals do not have jurisdiction to consider                        it, or it is in a form which cannot sensibly be responded to or is otherwise an abuse of process.                     

Rule 13 provides for the reconsideration of a rejection made under rule 10 or 12.

Rule 16 provides that a respondent has 28 days from the date that the copy of the claim was sent by an Employment Tribunal                        in which to present a response.                     

Rule 17 provides that a response shall be rejected if a prescribed form is not used or certain information is not contained                        in the response and rule 18 provides that a response shall be rejected if it is presented late.                     

Rule 19 provides for the reconsideration of a rejection made under rule 17 or 18.

Rule 20 allows a respondent to make an application for an extension of time for presenting the response to a claim.

Rule 21 sets out how an Employment Tribunal will determine a claim if no response is presented or the respondent does not                        contest a claim.                     

Rules 23 to 25 set out the process for presenting, and responding to, an employer's contract claim.

Rule 26 provides for an initial consideration of the claim and response. Rules 27 and 28 set out the process for the dismissal                        of all, or part, of the claim or response, if at this stage the Tribunal considers that the claim, response, or the part in                        question, has no reasonable prospect of success.                     

Rules 29 to 40 set out the Employment Tribunals' case management and other powers and the procedure for making applications                        for case management orders.                     

Rule 29 sets out the Employment Tribunals' general power to manage proceedings.

Rule 30 sets out the procedure for making applications for case management orders.

Rule 36 introduces a lead case mechanism, which enables an Employment Tribunal to identify claims giving rise to common or                        related issues of fact and law, specify one or more of those claims as a lead claim, and stay (in Scotland sist) the other                        claims. The related cases shall be bound by decisions in the lead case on the related issues, although a party may apply for                        such a decision not to apply to a related case.                     

Rule 37 provides the Employment Tribunals with the power to strike out all or part of a claim or response if one the specified                        grounds applies.                     

Rule 38 provides that an unless order may specify that all or part of a claim or response shall be struck out if the order                        is not complied with by a specified date.                     

Rule 39 provides that where an Employment Tribunal considers that a specific allegation or argument in a claim or response                        has little reasonable prospect of success it can order the relevant party to pay a deposit of up to £1,000 as a condition                        of continuing to advance that allegation or argument.                     

Rule 40 sets out the consequences which will follow if a party fails to pay any fee required under any enactment.

Rules 41 to 50 set out the rules common to all kinds of hearings, including rules on written representations (rule 42), witnesses                        (rule 43) and timetabling (rule 45).                     

Rule 50 provides that an Employment Tribunal may make an order to prevent or restrict disclosure of any aspect of proceedings                        so far as necessary in the interests of justice. Paragraph (3) lists examples of orders which may be made under this rule.                        Any person with a legitimate interest may, if he or she did not have opportunity to make representations before the order                        was made, apply for such an order to be revoked or discharged.                     

Rules 51 and 52 set out the procedure for withdrawal of a claim and provide for dismissal following withdrawal.

Rules 53 to 56 set out the scope of, and procedure for, preliminary hearings. Rules 57 to 59 set out the scope of, and procedure                        for, final hearings.                     

Rules 60 and 61 concern decisions made by an Employment Tribunal and rule 62 concerns reasons given by an Employment Tribunal.

Rule 65 sets out when a judgment or order takes effect and rule 66 sets out the time for compliance with a judgment or order                        which requires the payment of money.                     

Rules 70 to 73 set out the procedure for reconsideration by an Employment Tribunal of a judgment.

Rules 74 to 84 describe the circumstances in which a costs (in Scotland, expenses), preparation time, or wasted costs order                        may be made.                     

Rules 85 to 91 concern the requirements on delivery of documents to an Employment Tribunal, parties and non-parties.

Rule 92 introduces a new requirement on parties to copy all communications which they send to an Employment Tribunal to all                        other parties.                     

Rule 99 provides that proceedings may be transferred between Scotland and England and Wales.

Rule 104 modifies the application of the rest of Schedule 1 in relation to levy appeals under the Industrial Training Act                        1982 (modifications for such proceedings appeared in Schedule 3 to the 2004 Regulations).                     

Rule 105 modifies the application of the rest of Schedule 1 in relation to appeals against an improvement or prohibition notice                        under the Health and Safety at Work etc. Act 1974 (modifications for such proceedings appeared in Schedule 4 to the 2004 Regulations).                     

Rule 106 modifies the application of the rest of Schedule 1 in relation to appeals against an unlawful act notice under the                        Equality Act 2006 (modifications for such proceedings appeared in Schedule 5 to the 2004 Regulations).                     

Schedule 2 modifies the application of Schedule 1 in relation to proceedings in which a direction is given, or an order is                        made, under rule 94 (national security proceedings) of Schedule 1.                     

Schedule 3 modifies the application of Schedule 1 in relation to proceedings involving an equal value claim (as defined in                        rule 1 of Schedule 3).