The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005

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    (2) These Regulations shall come into operation on 3rd April 2005.

    (3) Subject to the savings in regulation 15, the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004[16] and the Industrial Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations (Northern Ireland) 2004[17] are revoked.

Interpretation
     2.  - (1) In these Regulations and in Schedules 1, 2, 3, 4, 5 and 6 -

"the Sex Discrimination Order" means the Sex Discrimination (Northern Ireland) Order 1976[18];

"the Disability Discrimination Act" means the Disability Discrimination Act 1995[19];

"the Industrial Tribunals Order" means the Industrial Tribunals (Northern Ireland) Order 1996[20];

"the Race Relations Order" means the Race Relations (Northern Ireland) Order 1997[21];

"the Employment Order" means the Employment (Northern Ireland) Order 2003[22];

"the Sexual Orientation Regulations" means the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003[23];

"allowances" means any allowances payable under Article 7(2)(c) or (3) of the Industrial Tribunals Order;

"chairman" means the President, the Vice-President or a member of the panel of chairmen appointed in accordance with regulation 4(1)(a), or, for the purposes of national security proceedings, a member of the panel referred to in regulation 6 selected in accordance with regulation 7(a), and in relation to particular proceedings it means the chairman to whom the proceedings have been referred by the President or the Vice-President;

"compromise agreement" means an agreement to refrain from continuing proceedings where the agreement meets the conditions in Article 245(3)[24] of the Employment Rights Order;

"constructive dismissal" has the meaning set out in Article 127(1)(c) of the Employment Rights Order;

"decision" includes a default judgement except when referred to in rules 34 to 36 of Schedule 1;

"document exchange" means any document exchange for the time being approved by the Lord Chancellor;

"electronic communication" has the meaning given to it by section 15(1) of the Electronic Communications Act 2000[25];

"excluded person" means, in relation to any proceedings, a person who has been excluded from all or part of the proceedings by virtue of -

(a) a direction of the Secretary of State under rule 54(1)(b) or (c) of Schedule 1; or

(b) an order of the tribunal under rule 54(2)(a) read with 54(1)(b) or (c) of Schedule 1;

"hearing" means a case management discussion under rule 17, a pre-hearing review under rule 18, a hearing under rule 26 or a review hearing under rule 33 or 36 (in each case as mentioned in Schedule 1) or a sitting of a chairman or a tribunal duly constituted for the purpose of receiving evidence, hearing addresses and witnesses or doing anything lawful to enable the chairman or tribunal to reach a decision on any question;

"legally represented" has the meaning set out in rule 38(5) of Schedule 1;

"misconceived" includes having no reasonable prospect of success;

"national security proceedings" means proceedings in relation to which a direction is given under rule 54(1) of Schedule 1, or an order is made under rule 54(2) of that Schedule;

"Office of the Tribunals" means the Office of the Industrial Tribunals and the Fair Employment Tribunal;

"old Regulations" means the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004;

"order" means an order, which may be issued in relation to interim matters, which may require a person to do or not to do something;

"panel of chairmen" means a panel referred to in regulation 4(1)(a);

"President" means the President of the Industrial Tribunals and the Fair Employment Tribunal or the person nominated by the Lord Chancellor under Article 82(6) of the Fair Employment and Treatment (Northern Ireland) Order 1998[26] to discharge for the time being the functions of the President;

"Register" means the Register of claims, appeals, applications, decisions and written reasons kept in accordance with regulation 13;

"the relevant authorities" means the persons mentioned in paragraph 5 of Schedule 10 to the Northern Ireland Act 1998;

"rule" means a rule of procedure contained in the Schedules;

"Secretary" means a person for the time being appointed to act as the Secretary of the Office of the Tribunals;

"special advocate" means a person appointed in accordance with rule 8 of Schedule 2;

"tribunal" means an industrial tribunal and in relation to any proceedings means the tribunal to which the proceedings have been referred by the President or the Vice-President;

"Vice-President" means the Vice-President of the Industrial Tribunals and the Fair Employment Tribunal or the person nominated by the Lord Chancellor under Article 82(6) of the Fair Employment and Treatment (Northern Ireland) Order 1998 to discharge for the time being the functions of the Vice-President;

"writing" includes writing delivered by means of electronic communication.

    (2) In these Regulations, in so far as they relate to the rules in Schedules 1, 2 and 3, and in those Schedules -

"the Equal Pay Act" means the Equal Pay Act (Northern Ireland) 1970[27];

"comparator" means the person of the opposite sex to the claimant in relation to whom the claimant claims that his work is of equal value as described in section 1(2)(c) of the Equal Pay Act[28];

"equal value claim" means a claim by a claimant which rests upon entitlement to the benefit of an equality clause by virtue of the operation of section 1(2)(c) of the Equal Pay Act;

"the facts relating to the question" has the meaning in rule 6(3) of Schedule 3;

"independent expert" means a member of the panel of independent experts within the meaning of section 2A(4) of the Equal Pay Act[29];

"indicative timetable" means the indicative timetable set out in the Annex to Schedule 3;

"the question" means whether the claimant's work is of equal value to that of the comparator as described in section 1(2)(c) of the Equal Pay Act;

"report" means a report required by a tribunal or chairman to be prepared by an expert, pursuant to section 2A(1)(b) of the Equal Pay Act.

    (3) In these Regulations, in so far as they relate to the rules in Schedule 4, and in that Schedule -

"the Industrial Training Order" means the Industrial Training (Northern Ireland) Order 1984[30];

"Board" means, in relation to an appeal, the Construction Industry Training Board[31];

"levy" means a levy imposed under Article 23 of the Industrial Training Order;

"levy appeal" means an appeal against an assessment to a levy;

"respondent" means the Board.

    (4) In these Regulations, in so far as they relate to the rules in Schedule 5, and in that Schedule -

"the Health and Safety Order" means the Health and Safety at Work (Northern Ireland) Order 1978[32];

"improvement notice" means a notice under Article 23 of the Health and Safety Order;

"inspector" means a person appointed under Article 21(1) of the Health and Safety Order;

"prohibition notice" means a notice under Article 24 of the Health and Safety Order;

"respondent" means the inspector who issued the improvement notice or prohibition notice which is the subject of the appeal.

    (5) In these Regulations, in so far as they relate to the rules in Schedule 6, and in that Schedule -

"the Disability Order" means the Equality (Disability, etc.) (Northern Ireland) Order 2000[33];

"appeal", unless the context requires otherwise, means an appeal referred to in Article 68(1)(a) of the Sex Discrimination Order, in Article 56(1)(a) of the Race Relations Order or, as the case may be, in paragraph 10(1) and (2)(a) of Schedule 1 to the Disability Order;

"non-discrimination notice" means a notice under Article 67 of the Sex Discrimination Order, under Article 55 of the Race Relations Order or, as the case may be, under Article 6 of the Disability Order;

"respondent" means the Equality Commission for Northern Ireland established under section 73 of the Northern Ireland Act 1998[34].

Overriding objective
     3.  - (1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and chairmen to deal with cases justly.

    (2) Dealing with a case justly includes, so far as practicable -

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

    (3) A tribunal or chairman shall seek to give effect to the overriding objective when it or he -

(a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6; or

(b) interprets these Regulations or any rule in Schedules 1, 2, 3, 4, 5 and 6.

    (4) The parties shall assist the tribunal or the chairman to further the overriding objective.

Panels of members of tribunals - general
     4.  - (1) There shall be three panels of members of industrial tribunals, namely -

(a) a panel of full-time and part-time chairmen appointed by the Department consisting of persons -


(i) having a seven year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990[35];

(ii) being an advocate or solicitor admitted in Scotland of at least seven years' standing; or

(iii) being a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least seven years' standing;



(b) a panel of persons appointed by the Department after consultation with such organisations or associations of organisations representative of employees as it sees fit; and

(c) a panel of persons appointed by the Department after consultation with such organisations or associations of organisations representative of employers as it sees fit.

    (2) Members of the panels constituted under these Regulations shall hold and vacate office under the terms of the instrument under which they are appointed but may resign their office by notice in writing to the Department; and any such member who ceases to hold office shall be eligible for reappointment.

    (3) The President or the Vice-President may establish further specialist panels of chairmen and persons referred to in paragraph (1)(b) and (c) and may select persons from such specialist panels in order to deal with proceedings in which particular specialist knowledge would be beneficial.

Composition of tribunals - general
     5.  - (1) For each hearing, the President or the Vice-President shall select a chairman, who shall, subject to regulation 7, be the President, the Vice-President or a member of the panel of chairmen, and the President or the Vice-President may select himself.

    (2) In any proceedings which are to be determined by a tribunal comprising a chairman and two other members, the President or the Vice-President shall, subject to regulation 7, select one of those other members from the panel of persons appointed by the Department under regulation 4(1)(b) and the other from the panel of persons appointed under regulation 4(1)(c).

    (3) In any proceedings which are to be determined by a tribunal whose composition is described in paragraph (2) or, as the case may be, regulation 7(b), those proceedings may, with the consent of the parties, be heard and determined in the absence of any one member other than the chairman.

    (4) The President or the Vice-President may at any time select from the appropriate panel another person in substitution for the chairman or other member of the tribunal previously selected to hear any proceedings before a tribunal or chairman.

Panels of members of tribunals - national security proceedings
     6. In relation to national security proceedings, the President shall -

(a) select a panel of persons from the panel of chairmen to act as chairmen in such cases; and

(b) select -


(i) a panel of persons from the panel referred to in regulation 4(1)(b) as persons suitable to act as members in such cases; and

(ii) a panel of persons from the panel referred to in regulation 4(1)(c) as persons suitable to act as members in such cases.

Composition of tribunals - national security proceedings
     7. In relation to national security proceedings -

(a) the President or the Vice-President shall select a chairman, who shall be the President, the Vice-President or a member of the panel selected in accordance with regulation 6(a), and the President or the Vice-President may select himself; and

(b) in any such proceedings which are to be determined by a tribunal comprising a chairman and two other members, the President or the Vice-President shall select one of those other members from the panel selected in accordance with regulation 6(b)(i) and the other from the panel selected in accordance with regulation 6(b)(ii).

Modification of Article 6 of the Industrial Tribunals Order (national security proceedings)
     8.  - (1) For the purposes of national security proceedings Article 6[36] of the Industrial Tribunals Order shall be modified in accordance with paragraphs (2) to (4).

    (2) In Article 6(1)(a), for the words "in accordance with regulations made under Article 3(1)" substitute the words "in accordance with regulation 7(a) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005".

    (3) In Article 6(1)(b), for the words "in accordance with regulations so made" substitute the words "in accordance with regulation 7(b) of those Regulations".

    (4) In Article 6(5), for the words "in accordance with regulations made under Article 3(1)" substitute the words "in accordance with regulation 6(a) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005".

Practice directions
     9.  - (1) The President may make practice directions about the procedure of industrial tribunals, including practice directions about the exercise by tribunals or chairmen of powers under these Regulations.

    (2) The power of the President to make practice directions under paragraph (1) includes power -

(a) to vary or revoke practice directions;

(b) to make different provision for different cases, including different provision for specific types of proceedings.

    (3) The President shall publish a practice direction made under paragraph (1), and any revocation or variation of it, in such manner as he considers appropriate for bringing it to the attention of the persons to whom it is addressed.

Power to prescribe
     10.  - (1) The Department may prescribe -

(a) one or more versions of a form, one of which shall be used by all claimants for the purpose of instituting proceedings in an industrial tribunal ("claim form") except any claim or proceedings listed in paragraph (3);

(b) one or more versions of a form, one of which shall be used by all respondents to a claim for the purpose of responding to a claim before an industrial tribunal ("response form") except respondents to a claim or proceedings listed in paragraph (3); and

(c) that the provision of certain information and answering of certain questions in a claim form or in a response form is mandatory in all proceedings save those listed in paragraph (3).

    (2) The Department shall publish the forms and matters prescribed pursuant to paragraph (1) in such manner as it considers appropriate in order to bring them to the attention of potential claimants, respondents and their advisers.

    (3) The proceedings referred to in paragraph (1) are -

(a) those referred to an industrial tribunal by a court;

(b) proceedings to which any of Schedules 4 to 6 apply or;

(c) proceedings brought under any of the following statutory provisions -


(i) sections 19, 20 or 22 of the National Minimum Wage Act 1998[37];

(ii) Article 43 of the Employment Rights Order where the proceedings are brought by the employer.

Calculation of time limits
     11.  - (1) Any period of time for doing any act required or permitted to be done under any of the rules in Schedules 1, 2, 3, 4, 5 and 6, or under any decision or order of a tribunal or a chairman, shall be calculated in accordance with paragraphs (2) to (6).

    (2) Where any act must or may be done within a certain number of days of or from an event, the date of that event shall not be included in the calculation. For example, a respondent is sent a copy of a claim on 1st May. He must present a response to the Office of the Tribunals within 28 days of the date on which he was sent the copy. The last day for presentation of the response is 29th May.

    (3) Where any act must or may be done not less than a certain number of days before or after an event, the date of that event shall not be included in the calculation. For example, if a party wishes to submit representations in writing for consideration by a tribunal at a hearing, he must submit them not less than 7 days before the hearing. If the hearing is fixed for 8th May, the representations must be submitted no later than 1st May.

    (4) Where the tribunal or a chairman gives any decision or order which imposes a time limit for doing any act, the last date for compliance shall, wherever practicable, be expressed as a calendar date.

    (5) In rule 14(4) of Schedule 1 the requirement to send the notice of hearing to the parties not less than 14 days before the date fixed for the hearing shall not be construed as a requirement for service of the notice to have been effected not less than 14 days before the hearing date, but as a requirement for the notice to have been placed in the post not less than 14 days before that date. For example, a hearing is fixed for 15th May. The last day on which the notice may be placed in the post is 1st May.

    (6) Where any act must or may have been done within a certain number of days of a document being sent to a person by the Secretary, the date when the document was sent shall, unless the contrary is proved, be regarded as the date on the letter from the Secretary which accompanied the document. For example, a respondent must present his response to a claim to the Office of the Tribunals within 28 days of the date on which he was sent a copy of the claim. If the letter from the Secretary sending him a copy of the claim is dated 1st May, the last day for presentation of the response is 29th May.

Application of Schedules 1-6 to proceedings
     12.  - (1) Subject to paragraphs (2) and (3), the rules in Schedule 1 shall apply in relation to all proceedings before an industrial tribunal except where separate rules of procedure made under the provisions of any statutory provision are applicable.

    (2) In proceedings to which the rules in Schedule 1 apply and in which any power conferred on the Secretary of State, the tribunal or a chairman by rule 54 (national security proceedings) of Schedule 1 is exercised, Schedule 1 shall be modified in accordance with Schedule 2.

    (3) The rules in Schedules 3, 4, 5 and 6 shall apply to modify the rules in Schedule 1 in relation to proceedings before a tribunal which consist, respectively, of -

(a) an equal value claim (as defined in regulation 2(2));

(b) an appeal by a person assessed to levy imposed under a levy order made under Article 23 of the Industrial Training Order;

(c) an appeal against an improvement or prohibition notice under Article 26 of the Health and Safety Order[38]; and

(d) an appeal against a non-discrimination notice under Article 67 of the Sex Discrimination Order, Article 55 of the Race Relations Order or paragraph 10 of Schedule 1 to the Equality (Disability, etc.) (Northern Ireland) Order 2000.

Register
     13.  - (1) The Secretary shall maintain a Register which shall be open to inspection by any person without charge at all reasonable hours.

    (2) The Register shall contain -

(a) details of all claims in accordance with rule 2(2)(g) of Schedule 1;

(b) details of appeals in accordance with rule 6(a) of Schedule 4, rule 4(a) of Schedule 5 and rule 3(a) of Schedule 6;

(c) the fact of applications in accordance with rule 5 of Schedule 5; and

(d) a copy of all decisions and any written reasons issued by any tribunal or chairman which are required to be entered in the Register in accordance with the rules in Schedules 1 to 6.

    (3) The Register, or any part of it, may be kept by means of a computer.

Proof of decisions of tribunals
     14. The production in any proceedings in any court of a document purporting to be certified by the Secretary to be a true copy of an entry of a decision in the Register shall, unless the contrary is proved, be sufficient evidence of the document and of the facts stated therein.

Transitional provisions
     15.  - (1) These Regulations and Schedules 1 to 6 shall apply in relation to all proceedings where those proceedings were commenced on or after 3rd April 2005.

    (2) These Regulations and Schedules 1 and 2 (with the exception of rules 1 to 3 and 38 to 48 of Schedule 1) shall apply to proceedings -

(a) which were commenced prior to 3rd April 2005; and

(b) to which Schedule 1 to the old Regulations applied;

provided that a copy of the originating application was not sent to the respondent prior to 3rd April 2005.

    (3) In relation to the proceedings described in paragraph (2), the following provisions of Schedule 1 to the old Regulations shall continue to apply -

(a) rule 1 (originating application);

(b) rule 2 (action upon receipt of originating application) with the exception of paragraphs (2), (4) and (5) of that rule; and

(c) rule 14 (costs).

    (4) In relation to proceedings described in paragraph (2) but where a copy of the originating application was sent to the respondent prior to 3rd April 2005, Schedules 1 and 2 to these Regulations shall apply with the exception of rules 1 to 9, 21 to 24, 33 and 38 to 48 of Schedule 1 and rules 2 to 5 of Schedule 2.

    (5) In relation to proceedings described in paragraph (4), the following provisions of the old Regulations shall continue to apply -

(a) in Schedule 1 -


(i) rule 1 (originating application);

(ii) rule 2 (action upon receipt of originating application) with the exception of paragraphs (2), (4) and (5) of that rule;

(iii) rule 3 (appearance by respondent);

(iv) rule 8 (national security);

(v) rule 14 (costs); and



(b) rule 1 of Schedule 2.

    (6) In relation to proceedings -

(a) which were commenced prior to 3rd April 2005;

(b) to which Schedule 3 to the old Regulations applied; and

(c) in which the tribunal has not, prior to 3rd April 2005, required a member of the panel of independent experts to prepare a report under section 2A(1)(b) of the Equal Pay Act;

these Regulations and rules 1 to 12 of Schedule 3, with the exception of rule 3(3)(a), shall apply.

    (7) In relation to proceedings -

(a) which were commenced prior to 3rd April 2005;

(b) to which Schedule 3 to the old Regulations applied; and

(c) in which the tribunal has, prior to 3rd April 2005, required a member of the panel of independent experts to prepare a report under section 2A(1)(b) of the Equal Pay Act;

Schedule 3 to the old Regulations shall continue to apply.

    (8) In relation to proceedings described in paragraph (7), the following rules of Schedule 3 shall also apply and shall take precedence over any conflicting provision in Schedule 3 to the old Regulations, namely rules 2, 10(2), 10(4), 11, 12(1) and 12(3).

    (9) Rule 13 of Schedule 3 shall apply to all proceedings to which, in accordance with this regulation, rule 10 of Schedule 2 applies.

    (10) In relation to proceedings commenced prior to 3rd April 2005 and to which Schedule 4, 5 or 6 to the old Regulations applied, the provisions of those schedules shall continue to apply to such proceedings.



Sealed with the Official Seal of the Department for Employment and Learning on


22nd March 2005.

L.S.

T. Devine
A senior officer of the Department for Employment and Learning

When the claim will not be accepted by the Secretary
     3.  - (1) The Secretary shall not accept or register the claim (or a relevant part of it) if it is clear to him that one or more of the following circumstances applies -

(a) the claim does not include all the relevant required information;

(b) the tribunal does not have power to consider the claim (or that relevant part of it); or

(c) Article 19 of the Employment Order (complaints about grievances: industrial tribunals) applies to the claim or part of it and the claim has been presented to the tribunal in breach of paragraphs (2) to (4) of that Article,

    (2) If the Secretary decides not to accept a claim or part of one for any of the reasons in paragraph (1), he shall refer the claim together with a statement of his reasons for not accepting it to a chairman. The chairman shall decide in accordance with the criteria in paragraph (1) whether the claim or part of it should be accepted and allowed to proceed.

    (3) If the chairman decides that the claim or part of it should be accepted he shall inform the Secretary in writing and the Secretary shall accept the relevant part of the claim and then proceed to deal with it in accordance with rule 2(2).

    (4) If the chairman decides that the claim or part of it should not be accepted he shall record his decision together with the reasons for it in writing in a document signed by him. The Secretary shall as soon as is reasonably practicable inform the claimant of that decision and the reasons for it in writing together with information on how that decision may be reviewed or appealed.

    (5) Where a claim or part of one has been presented to the tribunal in breach of paragraphs (2) to (4) of Article 19 of the Employment Order, the Secretary shall notify the claimant of the time limit which applies to the claim or the part of it concerned and shall inform the claimant of the consequences of not complying with Article 19 of that Order.

    (6) Except for the purposes of paragraphs (5) and (7) or any appeal, where a chairman has decided that a claim or part of one should not be accepted such a claim (or the relevant part of it) is to be treated as if it had not been received by the Secretary on that occasion.

    (7) Any decision by a chairman not to accept a claim or part of one may be reviewed in accordance with rules 34 to 36. If the result of such review is that any parts of the claim should have been accepted, then paragraph (6) shall not apply to the relevant parts of that claim and the Secretary shall then accept such parts and proceed to deal with it in accordance with rule 2(2).

    (8) A decision to accept or not to accept a claim or part of one shall not bind any future tribunal or chairman where any of the issues listed in paragraph (1) fall to be determined later in the proceedings.

    (9) Except in rule 34 (review of other decisions), all references to a claim in the remainder of these Rules are to be read as references to only the part of the claim which has been accepted.

What the tribunal does after receiving the response
     5.  - (1) On receiving the response the Secretary shall consider whether the response should be accepted in accordance with rule 6. If the response is not accepted it shall be returned to the respondent and (subject to paragraphs (4) and (5) of rule 6) the claim shall be dealt with as if no response to the claim had been presented.

    (2) If the Secretary accepts the response he shall send a copy of it to all other parties and record in writing the date on which he does so.

When the response will not be accepted by the Secretary
     6.  - (1) The Secretary shall not accept the response if it is clear to him that any of the following circumstances apply -

(a) the response does not include all the required information (defined in rule 4(4)); or

(b) the response has not been presented within the relevant time limit.

    (2) If the Secretary decides not to accept a response for either of the reasons in paragraph (1), he shall refer the response together with a statement of his reasons for not accepting the response to a chairman. The chairman shall decide in accordance with the criteria in paragraph (1) whether the response should be accepted.

    (3) If the chairman decides that the response should be accepted he shall inform the Secretary in writing and the Secretary shall accept the response and then deal with it in accordance with rule 5(2).

    (4) If the chairman decides that the response should not be accepted he shall record his decision together with the reasons for it in writing in a document signed by him. The Secretary shall inform both the claimant and the respondent of that decision and the reasons for it. The Secretary shall also inform the respondent of the consequences for the respondent of that decision and how it may be reviewed or appealed.

    (5) Any decision by a chairman not to accept a response may be reviewed in accordance with rules 34 to 36. If the result of such a review is that the response should have been accepted, then the Secretary shall accept the response and proceed to deal with the response as described in rule 5(2).

Counterclaims
     7.  - (1) When a respondent wishes to present a claim against the claimant ("a counterclaim") in accordance with Article 4 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994[39] he must present the details of his counterclaim to the Office of the Tribunals in writing. Those details must include -

(a) the respondent's name;

(b) the respondent's address;

(c) the name of each claimant whom the counterclaim is made against;

(d) each claimant's address;

(e) details of the counterclaim.

    (2) A chairman may in relation to particular proceedings by order made under rule 10(1) establish the procedure which shall be followed by the respondent making the counterclaim and any claimant responding to the counterclaim.

    (3) The President may by a practice direction made under regulation 9 make provision for the procedure which is to apply to counterclaims generally.

    (3) A default judgement may determine liability only or it may determine liability and remedy. If a default judgement determines remedy it shall be such remedy as it appears to the chairman that the claimant is entitled to on the basis of the information before him.

    (4) Any default judgement issued by a chairman under this rule shall be recorded in writing and shall be signed by him. The Secretary shall send a copy of that judgement to the parties, to the Agency, and, if the proceedings were referred to the tribunal by a court, to that court. The Secretary shall also inform the parties of their right to have the default judgement reviewed under rule 33. The Secretary shall put a copy of the default judgement on the Register (subject to rule 49 (sexual offences and the Register)).

    (5) The claimant or respondent may apply to have the default judgement reviewed in accordance with rule 33.

    (6) If the parties settle the proceedings (either by means of a compromise agreement or through the Agency) before or on the date on which a default judgement in those proceedings is issued, the default judgement shall have no effect.

    (7) When paragraph (6) applies, either party may apply under rule 33 to have the default judgement revoked.

Taking no further part in the proceedings
     9. A respondent who has not presented a response to a claim or whose response has not been accepted shall not be entitled to take any part in the proceedings except to -

(a) make an application under rule 33 (review of default judgements);

(b) make an application under rule 35 (preliminary consideration of application for review) in respect of rule 34(3)(a), (b) or (e);

(c) be called as a witness by another person; or

(d) be sent a copy of a document or corrected entry in accordance with rule 8(4), 29(2) or 37,

and in these Rules the word "party" or "respondent" includes a respondent only in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes.

    (3) An order may specify the time at or within which and the place at which any act is required to be done. An order may also impose conditions and it shall inform the parties of the potential consequences of non-compliance set out in rule 13.

    (4) When a requirement has been imposed under paragraph (1) the person subject to the requirement may make an application under rule 11 (applications in proceedings) for the order to be varied or revoked.

    (5) An order described in paragraph (2)(d) which requires a person other than a party to grant discovery or inspection of material may be made only when the discovery sought is necessary in order to dispose fairly of the claim or to save expense.

    (6) Any order containing a requirement described in paragraph (2)(c) or (d) shall state that under Article 9(4) of the Industrial Tribunals Order[40], any person who without reasonable excuse fails to comply with the requirement shall be liable on summary conviction to a fine, and the document shall also state the amount of the current maximum fine.

    (7) An order as described in paragraph (2)(j) may be made only if all relevant parties have been given notice that such an order may be made and they have been given the opportunity to make oral or written representations as to why such an order should or should not be made.

    (8) Any order made under this rule shall be recorded in writing and signed by the chairman and the Secretary shall inform all parties to the proceedings of any order made as soon as is reasonably practicable.

Applications in proceedings
     11.  - (1) At any stage of the proceedings a party may apply for an order to be issued, varied or revoked or for a case management discussion or pre-hearing review to be held.

    (2) An application for an order must be made not less than 10 days before the date of the hearing at which it is to be considered (if any) unless it is not reasonably practicable to do so, or the chairman or tribunal considers it in the interests of justice that shorter notice be allowed. The application must (unless a chairman orders otherwise) be in writing to the Office of the Tribunals and include the case number for the proceedings and the reasons for the request. If the application is for a case management discussion or a pre-hearing review to be held, it must identify any orders sought.

    (3) An application for an order must include an explanation of how the order would assist the tribunal or chairman in dealing with the proceedings efficiently and fairly.

    (4) Where a party is legally represented in relation to the application (except where the application is for a witness order described in rule 10(2)(c) only), that party or his representative must, at the same time as the application is sent to the Office of the Tribunals provide all other parties with the following information in writing -

(a) details of the application and the reasons why it is sought;

(b) notification that any objection to the application must be sent to the Office of the Tribunals within 7 days of receiving the application, or before the date of the hearing (whichever date is the earlier); and

(c) that any objection to the application must be copied to both the Office of the Tribunals and all other parties,

and the party or his representative must confirm in writing to the Office of the Tribunals that this rule has been complied with.

    (5) Where a party is not legally represented in relation to the application, the Secretary shall inform all other parties of the matters listed in paragraph (4)(a) to (c).

    (6) A chairman may refuse a party's application and if he does so the Secretary shall inform the parties in writing of such refusal unless the application is refused at a hearing.

Chairman acting on his own initiative
     12.  - (1) Subject to paragraph (2) and to rules 10(7) and 18(7), a chairman may make an order on his own initiative with or without hearing the parties or giving them an opportunity to make written or oral representations. He may also decide to hold a case management discussion or pre-hearing review on his own initiative.

    (2) Where a chairman makes an order without giving the parties the opportunity to make representations -

(a) the Secretary must send to the party affected by such order a copy of the order and a statement explaining the right to make an application under sub-paragraph (b); and

(b) a party affected by the order may apply to have it varied or revoked.

    (3) An application under paragraph (2)(b) must (subject to rule 10(2)(e)) be made before the time at which, or the expiry of the period within which, the order was to be complied with. Such an application must (unless a chairman orders otherwise) be made in writing to the Office of the Tribunals and it must include the reasons for the application. Paragraphs (4) and (5) of rule 11 apply in relation to informing the other parties of the application.

Compliance with orders and practice directions
     13.  - (1) If a party does not comply with an order made under these Rules, under rule 7 of Schedule 4 or a practice direction, a chairman or tribunal -

(a) may make an order in respect of costs or preparation time under rules 38 to 47; or

(b) may (subject to paragraph (2) and rule 19) at a pre-hearing review or a hearing under rule 26 make an order to strike out the whole or part of the claim or, as the case may be, the response and, where appropriate, order that a respondent be debarred from responding to the claim altogether.

    (2) An order may also provide that unless the order is complied with the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or a hearing under rule 26.

    (3) Chairmen and tribunals shall comply with any practice directions issued under regulation 9.

    (2) So far as it appears appropriate to do so, the chairman or tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any statutory provision or rule of law relating to the admissibility of evidence in proceedings before the courts.

    (3) The chairman or tribunal (as the case may be) shall make such enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings.

    (4) Unless the parties agree to shorter notice, the Secretary shall send notice of any hearing (other than a case management discussion) to every party not less than 14 days before the date fixed for the hearing and shall inform them that they have the opportunity to submit written representations and to advance oral argument. The Secretary shall give the parties reasonable notice before a case management discussion is held.

    (5) If a party wishes to submit written representations for consideration at a hearing (other than a case management discussion) he shall present them to the Office of the Tribunals not less than 7 days before the hearing and shall at the same time send a copy to all other parties.

    (6) The tribunal or chairman may, if it or he considers it appropriate, consider representations in writing which have been submitted otherwise than in accordance with paragraph (5).

Use of electronic communications
     15.  - (1) A hearing (other than those mentioned in sub-paragraphs (c) and (d) of rule 14(1)) may be conducted by use of electronic communications provided that the chairman or tribunal conducting the hearing considers it just and equitable to do so.

    (2) Where a hearing is required by these Rules to be held in public and it is to be conducted by use of electronic communications in accordance with this rule then, subject to rule 16, it must be held in a place to which the public has access and using equipment so that the public is able to hear all parties to the communication.

Hearings which may be held in private
     16.  - (1) A hearing or part of one may be conducted in private for the purpose of hearing from any person evidence or representations likely in the opinion of the tribunal or chairman to consist of information -

(a) which he could not disclose without contravening a prohibition imposed by or by virtue of any statutory provision;

(b) which has been communicated to him in confidence, or which he has otherwise obtained in consequence of the confidence placed in him by another person; or

(c) the disclosure of which would, for reasons other than its effect on negotiations with respect to any of the matters mentioned in Article 96(1) of the Industrial Relations (Northern Ireland) Order 1992[41], cause substantial injury to any undertaking of his or any undertaking in which he works.

    (2) Where a tribunal or chairman decides to hold a hearing or part of one in private, it or he shall give reasons for doing so.

    (8) A claim or response or any part of one may be struck out under these Rules only on the grounds stated in paragraph (7)(b) to (f).

    (9) If at a pre-hearing review a requirement to pay a deposit under rule 20 has been considered, the chairman who conducted that pre-hearing review shall not be a member of the tribunal at the hearing under rule 26 in relation to those proceedings.

Notice requirements
     19.  - (1) Before a chairman or a tribunal makes an order described in rule 18(7), except where the order is one described in rule 13(2) or it is a temporary restricted reporting order made in accordance with rule 50, the Secretary shall send notice to the party against whom it is proposed that the order should be made. The notice shall inform him of the order to be considered and give him the opportunity to give reasons why the order should not be made. This paragraph shall not be taken to require the Secretary to send such notice to that party if the party has been given an opportunity to give reasons orally to the chairman or the tribunal as to why the order should not be made.

    (2) Where a notice required by paragraph (1) is sent in relation to an order to strike out a claim which has not been actively pursued, unless the contrary is proved, the notice shall be treated as if it were received by the addressee if it has been sent to the address specified in the claim as the address to which notices are to be sent (or to any subsequent replacement for that address which has been notified to the Office of the Tribunals).

(a) the Equal Pay Act, section 2(1);

(b) the Sex Discrimination Order, Article 63[42];

(c) the Race Relations Order, Article 52[43];

(d) the Disability Discrimination Act, section 17A or 25(8)[44];

(e) the Sexual Orientation Regulations, regulation 34; and

(f) the Employment Rights Order, Articles 70B, 134A and 137(5A)[45] (protected disclosures).

    (2) In all proceedings to which this rule applies there shall be a conciliation period to give a time limited opportunity for the parties to reach, in conjunction with the Agency, a conciliated settlement (the "conciliation period"). In proceedings in which there is more than one respondent there shall be a conciliation period in relation to each respondent.

    (3) In any proceedings to which this rule applies a hearing under rule 26 shall not take place during a conciliation period and where the time and place of a hearing under rule 26 has been fixed to take place during a conciliation period, such hearing shall be postponed until after the end of any conciliation period. The fixing of the time and place for such hearing may take place during a conciliation period. Pre-hearing reviews and case management discussions may take place during a conciliation period.

    (4) In relation to each respondent the conciliation period commences on the date on which the Secretary sends a copy of the claim to that respondent. The duration of the conciliation period shall be determined in accordance with the following paragraphs, and rule 23.

    (5) In any proceedings which consist of claims under any of the following statutory provisions (but no other statutory provisions) the conciliation period is seven weeks (the "short conciliation period") -

(a) the Industrial Tribunals Order, Article 5[46] (breach of contract);

(b) the following provisions of the Employment Rights Order -


(i) Articles 45 to 59[47] (failure to pay wages or an unauthorised deduction from wages);

(ii) Article 60 (right to a guarantee payment);

(iii) Article 78[48] (right to time off for public duties);

(iv) Article 80 (right to time off to look for work or arrange training);

(v) Article 81 (right to remuneration for time off under Article 80);

(vi) Article 83 (right to time off for ante-natal care);

(vii) Article 84 (right to remuneration for time off under Article 83);

(viii) Article 92[49] (right to time off for carrying out trade union duties);

(ix) Article 92A[50] (time off for union learning representatives);

(x) Article 93[51] (right to remuneration for time off under Article 92);

(xi) Article 94[52] (right to time off for trade union activities);

(xii) Article 96[53] (failure to pay remuneration whilst suspended for medical reasons);

(xiii) Article 100 (right to remuneration whilst suspended on maternity grounds);

(xiv) Articles 198 or 199 (failure to pay a redundancy payment);

(xv) Article 220 (failure to pay remuneration under a protective award),



(c) Article 35 of the Trade Union and Labour Relations (Northern Ireland) Order 1995[54] (right not to suffer deduction of unauthorised subscriptions);

(d) regulation 11(5) of the Transfer of Undertakings (Protection of Employment) Regulations 1981[55] (failure to pay compensation following failure to inform or consult).

    (6) In all other proceedings to which this rule applies the conciliation period is thirteen weeks (the "standard conciliation period").

    (7) In proceedings to which the standard conciliation period applies, that period shall be extended by a period of a further two weeks if, before the expiry of the standard conciliation period, the Agency notifies the Secretary in writing that the following circumstances apply:

(a) all parties to the proceedings agree to the extension of any relevant conciliation period;

(b) a proposal for settling the proceedings has been made by a party and is under consideration by the other parties to the proceedings; and

(c) the Agency considers it probable that the proceedings will be settled during the further extended conciliation period.

    (8) A short conciliation period in any proceedings may, if that period has not already ended, be extended into a standard conciliation period if a chairman considers on the basis of the complexity of the proceedings that a standard conciliation period would be more appropriate. Where a chairman makes an order extending the conciliation period in such circumstances, the Secretary shall inform the parties to the proceedings and the Agency in writing as soon as is reasonably practicable.

Early termination of conciliation period
     23.  - (1) Should one of the following circumstances arise during any conciliation period which relates to a particular respondent (referred to in this rule as the relevant respondent), that conciliation period shall terminate early on the relevant date specified (and if more than one circumstance or date listed below is applicable to any conciliation period, that conciliation period shall terminate on the earliest of those dates) -

(a) where a default judgement is issued against the relevant respondent which determines both liability and remedy, the date on which the default judgement is signed;

(b) where a default judgement is issued against the relevant respondent which determines liability only, the date which is 14 days after the date on which the default judgement is signed;

(c) where either the claim or the response entered by the relevant respondent is struck out, the date on which the order to strike out is signed;

(d) where the claim is withdrawn, the date of receipt by the Office of the Tribunals of the notice of withdrawal;

(e) where the claimant or the relevant respondent has informed the Agency in writing that they do not wish to proceed with attempting to conciliate in relation to those proceedings, the date on which the Agency sends notice of such circumstances to the parties and to the Office of the Tribunals;

(f) where the claimant and the relevant respondent have reached a settlement by way of a compromise agreement (including a compromise agreement to refer proceedings to arbitration), the date on which the Office of the Tribunals receives notice from both of those parties to that effect;

(g) where the claimant and the relevant respondent have reached a settlement through the Agency (including a settlement to refer the proceedings to arbitration), the date of the settlement;

(h) where no response presented by the relevant respondent has been accepted in the proceedings and no default judgement has been issued against that respondent, the date which is 14 days after the expiry of the time limit for presenting the response to the Secretary.

    (2) Where a chairman or tribunal makes an order which re-establishes the relevant respondent's right to respond to the claim (for example, revoking a default judgement) and when that order is made, the conciliation period in relation to that respondent has terminated early under paragraph (1) or has otherwise expired, the chairman or tribunal may order that a further conciliation period shall apply in relation to that respondent if they consider it appropriate to do so.

    (3) When an order is made under paragraph (2), the further conciliation period commences on the date of that order and the duration of that period shall be such period as the chairman may decide provided that it does not exceed a period of thirteen weeks beginning with the date of the order. This period shall be extended by a period of a further two weeks, if before the expiry of the conciliation period specified in the order, the Agency notifies the Secretary in writing that the circumstances listed in rule 22(7) apply.

Effect of staying proceedings on the conciliation period
     24. Where during a conciliation period an order is made to stay the proceedings, that order has the effect of suspending any conciliation period in those proceedings. Any unexpired portion of a conciliation period takes effect from the date on which the stay comes to an end and continues for the duration of the unexpired portion of that conciliation period or two weeks (whichever is the greater).

Absence of chairman
     31. Where it is not possible for a decision, order or reasons to be signed by the chairman due to death, incapacity or absence -

(a) if the chairman has dealt with the proceedings alone the document shall be signed by the President or the Vice-President when it is practicable for him to do so; and

(b) if the proceedings have been dealt with by a tribunal composed of two or three persons, the document shall be signed by the other person or persons,

and any person who signs the document shall certify that the chairman is unable to sign.

Entry of decisions and reasons in the Register
     32.  - (1) Subject to rule 49, the Secretary shall enter a copy of the following documents in the Register -

(a) any decision (including any order for costs, allowances, preparation time or wasted costs); and

(b) any written reasons provided in accordance with rule 30 in relation to any decision.

    (2) Written reasons for decisions shall be omitted from the Register in any case in which evidence has been heard in private and the tribunal or chairman so orders. In such a case the Secretary shall send the reasons to each of the parties and where there are proceedings before a superior court relating to the decision in question, he shall send the reasons to that court, together with a copy of the entry in the Register of the decision to which the reasons relate.