(1) The Secretary of State and the Lord Chancellor, acting jointly, may by order—
(a) provide that any provision of this Act to which this section applies and which is specified in the order shall not apply to persons, or to employments, of such classes as may be prescribed in the order, or
(b) provide that any provision of this Act to which this section applies shall apply to persons or employments of such classes as may be prescribed in the order subject to such exceptions and modifications as may be so prescribed.
(2) This section applies to sections 3, 8, 16 and 17 ....
(1) Any power conferred by this Act on a Minister of the Crown to make an order, and any power conferred by this Act to make regulations or rules, is exercisable by statutory instrument.
(1A) No recommendation may be made to Her Majesty to make an Order in Council under section 38(4) unless a draft of the Order in Council has been laid before Parliament and approved by a resolution of each House of Parliament.
(2) A statutory instrument containing—
(a) an order under section 3 ... , 12A(12) ... or 40,
(b) regulations under section 4, 28, 37N, 37O or 37Q(5), , or
(c) regulations under section 37QB that amend or repeal provision made by an Act,
may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(3) A statutory instrument containing—
(a) an order made by a Minister of the Crown under any other provision of this Act except Part II of Schedule 2, or
(b) any other regulations or rules made under this Act,
is subject to annulment in pursuance of a resolution of either House of Parliament.
(4) Any power conferred by this Act which is exercisable by statutory instrument includes power to make such incidental, supplementary or transitional provision as appears to the Minister exercising the power to be necessary or expedient.
(5) This section does not apply in relation to Procedure Rules (the procedure for which is provided for by Schedule A1).
(1) In this Act (except where otherwise expressly provided) —
“ACAS” means the Advisory, Conciliation and Arbitration Service,
“the Appeal Tribunal” means the Employment Appeal Tribunal,
...
“appointed member” shall be construed in accordance with section 22(1)(c),
“Certification Officer” shall be construed in accordance with section 254 of the Trade Union and Labour Relations (Consolidation) Act 1992,
“conciliation officer” means an officer designated by ACAS under section 211 of the Trade Union and Labour Relations (Consolidation) Act 1992,
“contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing,
“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment,
“employer”, in relation to an employee, means the person by whom the employee is (or, where the employment has ceased, was) employed,
“employers’ association” has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992,
“employment” means employment under a contract of employment and “employed” shall be construed accordingly,
...
“Procedure Rules” is to be read in accordance with section 37QA(2), and—
in Part 1, means Procedure Rules in respect of employment tribunals;
in Part 2, means Procedure Rules in respect of the Appeal Tribunal,
“representative” shall be construed in accordance with section 6(1) (in Part 1) or section 29(1) (in Part 2),
“statutory provision” means a provision, whether of a general or a special nature, contained in, or in any document made or issued under, any Act, whether of a general or special nature,
“successor”, in relation to the employer of an employee, means (subject to subsection (2)) a person who in consequence of a change occurring (whether by virtue of a sale or other disposition or by operation of law) in the ownership of the undertaking, or of the part of the undertaking, for the purposes of which the employee was employed, has become the owner of the undertaking or part, ...
“trade union” has the meaning given by section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992.
“Tribunal Procedure Committee” means the committee of that name constituted under Part 2 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007.
(2) The definition of “successor” in subsection (1) has effect (subject to the necessary modifications) in relation to a case where—
(a) the person by whom an undertaking or part of an undertaking is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change, or
(b) the persons by whom an undertaking or part of an undertaking is owned immediately before a change (whether as partners, trustees or otherwise) include the persons by whom, or include one or more of the persons by whom, it is owned immediately after the change,
as it has effect where the previous owner and the new owner are wholly different persons.
(3) For the purposes of this Act any two employers shall be treated as associated if—
(a) one is a company of which the other (directly or indirectly) has control, or
(b) both are companies of which a third person (directly or indirectly) has control;
and “associated employer” shall be construed accordingly.
The enactments specified in Part I of Schedule 3 are repealed, and the instruments specified in Part II of that Schedule are revoked, to the extent specified in the third column of that Schedule.
Section 37QA
Part 1 Objectives
1 (1) The Tribunal Procedure Committee must exercise its power to make Procedure Rules with a view to securing—
(a) that justice is done in proceedings before the tribunal,
(b) that the tribunal system is accessible and fair,
(c) that proceedings are handled quickly and efficiently,
(d) that Procedure Rules are both simple and simply expressed, and
(e) that Procedure Rules, where appropriate, confer responsibility on members of the tribunal for ensuring that proceedings before the tribunal are handled quickly and efficiently.
(2) In sub-paragraph (1)(b), “the tribunal system” means the system for deciding matters within the jurisdiction of the tribunal.
Part 2 Content of Procedure Rules
Delegation of functions to staff
2 (1) Procedure Rules may provide for functions of the tribunal to be exercised by staff appointed under section 2(1) of the Courts Act 2003 (court staff) or section 40(1) of the Tribunals, Courts and Enforcement Act 2007 (tribunal staff).
(2) In making provision of the kind mentioned in sub-paragraph (1) in relation to a function, Procedure Rules may (in particular)—
(a) provide for the function to be exercisable by a member of staff only if the member of staff is, or is of a description, specified in exercise of a discretion conferred by Procedure Rules;
(b) provide for the function to be exercisable by a member of staff only if the member of staff is approved, or is of a description approved, for the purpose by a person specified in Procedure Rules.
(3) A person may exercise functions by virtue of this paragraph only if authorised to do so by the Senior President of Tribunals.
(4) An authorisation under this paragraph—
(a) may be subject to conditions, and
(b) may be varied or revoked by the Senior President of Tribunals at any time.
(5) The Senior President of Tribunals may delegate to one or more of the following the Senior President of Tribunals’ functions under the preceding provisions of this paragraph—
(a) a judicial office holder;
(b) a person appointed under section 2(1) of the Courts Act 2003 or section 40(1) of the Tribunals, Courts and Enforcement Act 2007.
(6) A person to whom functions of the Senior President of Tribunals are delegated under sub-paragraph (5)(b) is not subject to the direction of any person other than—
(a) the Senior President of Tribunals, or
(b) a judicial office holder nominated by the Senior President of Tribunals,
when exercising the functions.
(7) Subsections (3) to (5) of section 8 of the Tribunals, Courts and Enforcement Act 2007 apply to a delegation under sub-paragraph (5) as they apply to a delegation under subsection (1) of that section.
(8) In this paragraph, “judicial office holder” means—
(a) a judicial office holder within the meaning given by section 109(4) of the Constitutional Reform Act 2005, or
(b) the President of Employment Tribunals (Scotland).
Time limits
3 Procedure Rules may make provision for time limits as respects initiating, or taking any step in, proceedings before the tribunal.
Determining where to start proceedings
4 Procedure Rules may include provision for determining whether proceedings before the tribunal are to be brought in England and Wales or in Scotland.
Repeat applications
5 Procedure Rules may make provision restricting the making of fresh applications where a previous application in relation to the same matter has been made.
Tribunal acting of its own initiative
6 Procedure Rules may make provision about the circumstances in which the tribunal may exercise its powers of its own initiative.
Hearings
7 Procedure Rules may—
(a) make provision for dealing with matters without a hearing;
(b) make provision as respects allowing or requiring a hearing to be in private or as respects allowing or requiring a hearing to be in public.
Proceedings without notice
8 Procedure Rules may make provision for proceedings to take place, in circumstances described in Procedure Rules, at the request of one party even though the other, or another, party has had no notice.
Representation
9 Procedure Rules may make provision conferring additional rights of audience before the tribunal.
Intervention by Secretary of State
10 Procedure Rules may make provision—
(a) for the Secretary of State to be treated (either generally or in circumstances prescribed by the Rules) as a party to any proceedings, and
(b) for the Secretary of State to be entitled to appear and to be heard accordingly.
Evidence, witnesses and attendance
11 (1) Procedure Rules may make provision about evidence (including evidence on oath and administration of oaths).
(2) Procedure Rules may modify any rules of evidence provided for elsewhere, so far as they would apply to proceedings before the tribunal.
(3) Procedure Rules may make provision, where an employment tribunal has required a person—
(a) to attend at any place for the purpose of giving evidence,
(b) otherwise to be available to give evidence,
(c) to swear an oath in connection with the giving of evidence,
(d) to give evidence as a witness,
(e) to produce a document, or
(f) to facilitate the inspection of a document or any other thing (including any premises),
for the Appeal Tribunal to deal with non-compliance with the requirement as though the requirement had been imposed by the Appeal Tribunal.
(4) Procedure Rules may make provision for the payment of expenses and allowances to persons giving evidence, producing documents, attending proceedings or required to attend proceedings.
Use of information
12 (1) Procedure Rules may make provision for the disclosure or non-disclosure of information received during the course of proceedings before the tribunal.
(2) Procedure Rules may make provision for imposing reporting restrictions in circumstances described in Procedure Rules.
Set-off
13 Procedure Rules may make provision for a party to proceedings to deduct, from amounts payable by the party, amounts payable to the party.
Reconsideration or review of decisions
14 Procedure Rules may confer power on the tribunal to reconsider or review its decisions, and revoke or vary its orders and awards, in such circumstances as may be determined in accordance with Procedure Rules.
Correction of errors and setting aside of decisions on procedural grounds
15 (1) Procedure Rules may make provision for the correction of accidental errors in a decision or record of a decision.
(2) Procedure Rules may make provision for the setting aside of a decision in proceedings before the tribunal—
(a) where a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party’s representative,
(b) where a document relating to the proceedings was not sent to the tribunal at an appropriate time,
(c) where a party to the proceedings, or a party’s representative, was not present at a hearing related to the proceedings, or
(d) where there has been any other procedural irregularity in the proceedings.
(3) Sub-paragraphs (1) and (2) do not affect, and are not affected by, any power to correct errors or set aside decisions that is exercisable apart from rules made by virtue of those sub-paragraphs.
Registration and proof of decisions
16 Procedure Rules may make provision for the registration and proof of decisions, orders and awards of the tribunal.
Ancillary powers
17 Procedure Rules may confer on the tribunal such ancillary powers as are necessary for the proper discharge of its functions.
Rules may refer to practice directions
18 Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions under section 7A or 29A.
Presumptions
19 Procedure Rules may make provision in the form of presumptions (including, in particular, presumptions as to service or notification).
Differential provision
20 Procedure Rules may make different provision for different purposes or different areas.
Part 3 Supplementary provision
Procedure for making Procedure Rules
21 (1) Part 3 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 (which makes provision about how Tribunal Procedure Rules are to be made) applies to the making of Procedure Rules under this Act as it applies to the making of Tribunal Procedure Rules under section 22 of that Act, with the following modifications.
(2) In paragraph 28(1)(a) of that Schedule, the reference to the Chamber Presidents is to be read as a reference to the President of the Employment Tribunals (England and Wales) and the President of the Employment Tribunals (Scotland).
(3) In paragraph 28A(1) of that Schedule—
(a) the reference to the First-tier Tribunal or Upper Tribunal is to be read as a reference to an employment tribunal or the Employment Appeal Tribunal, and
(b) the reference to paragraph 3 of that Schedule is to be read as a reference to paragraph 2 of this Schedule.
Interpretation
22 In this Schedule, “the tribunal” means—
(a) an employment tribunal, in relation to Procedure Rules in respect of employment tribunals;
(b) the Appeal Tribunal, in relation to Procedure Rules in respect of the Appeal Tribunal.
Section 43.
The Transport Act 1968 (c.73)
1 Section 135(4)(b) of the Transport Act 1968 shall continue to have effect with the substitution (originally made by paragraph 6 of Schedule 16 to the Employment Protection (Consolidation) Act 1978) of “ an employment tribunal ” for the words from “a tribunal" to the end.
The Transport Holding Company Act 1972 (c.14)
2 Section 2 of the Transport Holding Company Act 1972 shall continue to have effect with the substitution (originally made by paragraph 13 of Schedule 16 to the Employment Protection (Consolidation) Act 1978) of “ an employment tribunal ” for—
(a) in subsection (3)(c), the words from “a tribunal" to the end, and
(b) in subsection (7), “a tribunal established under section 12 of the Industrial Training Act 1964".
The Sex Discrimination Act 1975 (c.65)
3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Race Relations Act 1976 (c.74)
4 (1) The Race Relations Act 1976 is amended as follows.
(2) In section 56(6), for “paragraph 6A of Schedule 9 to the Employment Protection (Consolidation) Act 1978" substitute “ section 14 of the Employment Tribunals Act 1996 ”.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Aircraft and Shipbuilding Industries Act 1977 (c.3)
5 In the Aircraft and Shipbuilding Industries Act 1977—
(a) section 49(10), and
(b) section 50(3)(b),
shall continue to have effect with the substitution (originally made by paragraph 28 of Schedule 16 to the Employment Protection (Consolidation) Act 1978) of “ an employment tribunal or, as the case may require, a tribunal established under ” for “a tribunal established under section 12 of the Industrial Training Act 1964 or, as the case may require".
The Judicial Pensions Act 1981 (c.20)
6 In section 12(1) of the Judicial Pensions Act 1981, for “section 128 of the Employment Protection (Consolidation) Act 1978" substitute “ section 1(1) of the Employment Tribunals Act 1996 ”.
The Social Security Administration Act 1992 (c.5)
7 In section 58(4) of the Social Security Administration Act 1992, for “section 132 of the Employment Protection (Consolidation) Act 1978" substitute “ section 16 of the Employment Tribunals Act 1996 ”.
The Trade Union and Labour Relations (Consolidation) Act 1992 (c.52)
8 In section 288 of the Trade Union and Labour Relations (Consolidation) Act 1992—
(a) in subsection (2), for paragraphs (a) and (b) substitute “ section 18 of the Employment Tribunals Act 1996 (conciliation) ”, and
(b) in subsection (2A), for “section 290" substitute “ subsection (1)(b) of that section ”.
The Tribunals and Inquiries Act 1992 (c.53)
9 (1) The Tribunals and Inquiries Act 1992 is amended as follows.
(2) In section 11(2), for “section 136(1) of the Employment Protection (Consolidation) Act 1978" substitute “ section 21(1) of the Employment Tribunals Act 1996 ”.
(3) In Schedule 1—
(a) in Part I, in paragraph 16, and
(b) in Part II, in paragraph 51,
for “section 128 of the Employment Protection (Consolidation) Act 1978 (c. 44)" substitute “ section 1(1) of the Employment Tribunals Act 1996 (c. 17) ”.
The Judicial Pensions and Retirement Act 1993 (c.8)
10 (1) The Judicial Pensions and Retirement Act 1993 is amended as follows.
(2) In Schedule 1, in Part II, in the entry relating to the office of chairman of employment tribunals, for “section 128 of the Employment Protection (Consolidation) Act 1978" substitute “ section 1(1) of the Employment Tribunals Act 1996 ”.
(3) In Schedule 5—
(a) in the entry relating to the office of chairman of employment tribunals, for “section 128 of the Employment Protection (Consolidation) Act 1978" substitute “ section 1(1) of the Employment Tribunals Act 1996 ”, and
(b) in the entry relating to the office of member of the Employment Appeal Tribunal, for “section 135(2)(c) of the Employment Protection (Consolidation) Act 1978" substitute “ section 22(1)(c) of the Employment Tribunals Act 1996 ”.
(4) In paragraph 5 of Schedule 7—
(a) in sub-paragraphs (2)(g) and (5)(vii), for “section 128 of the Employment Protection (Consolidation) Act 1978" substitute “ section 1(1) of the EmploymentTribunals Act 1996 ”, and
(b) in sub-paragraph (7), for “section 135(2)(c) of the Employment Protection (Consolidation) Act 1978" substitute “ section 22(1)(c) of the Employment Tribunals Act 1996 ”.
The Pension Schemes Act 1993 (c.48)
11 In section 181(1) of the Pension Schemes Act 1993, in the definition of “ employment tribunal", for “section 128 of the Employment Protection (Consolidation) Act 1978" substitute “ section 1(1) of the Employment Tribunals Act 1996 ”.
The Disability Discrimination Act 1995 (c.50)
12 (1) The Disability Discrimination Act 1995 is amended as follows.
(2) In section 8(7), for “paragraph 6A of Schedule 9 to the Employment Protection (Consolidation) Act 1978" substitute “ section 14 of the Employment Tribunals Act 1996 ”.
(3) In section 9(2)(a), for “paragraph 1 of Schedule 3" substitute “ section 18 of the Employment Tribunals Act 1996 ”.
SCHEDULE 2 Transitional provisions, savings and transitory provisions
Section 44.
Part I Transitional provisions and savings
1 The substitution of this Act for the provisions repealed or revoked by this Act does not affect the continuity of the law.
2 Anything done, or having effect as done, (including the making of subordinate legislation) under or for the purposes of any provision repealed or revoked by this Act has effect as if done under or for the purposes of any corresponding provision of this Act.
3 Any reference (express or implied) in this Act or any other enactment, or in any instrument or document, to a provision of this Act is (so far as the context permits) to be read as (according to the context) being or including in relation to times, circumstances and purposes before the commencement of this Act a reference to the corresponding provision repealed or revoked by this Act.
4 (1) Any reference (express or implied) in any enactment, or in any instrument or document, to a provision repealed or revoked by this Act is (so far as the context permits) to be read as (according to the context) being or including in relation to times, circumstances and purposes after the commencement of this Act a reference to the corresponding provision of this Act.
(2) In particular, where a power conferred by an Act is expressed to be exercisable in relation to enactments contained in Acts passed before or in the same Session as the Act conferring the power, the power is also exercisable in relation to provisions of this Act which reproduce such enactments.
5 Paragraphs 1 to 4 have effect in place of section 17(2) of the Interpretation Act 1978 (but are without prejudice to any other provision of that Act).
6 The repeal by this Act of section 130 of, and Schedule 10 to, the Employment Protection (Consolidation) Act 1978 (jurisdiction of referees under specified provisions to be exercised by employment tribunals) does not affect—
(a) the operation of those provisions in relation to any question which may arise after the commencement of this Act, or
(b) the continued operation of those provisions after the commencement of this Act in relation to any question which has arisen before that commencement.
Part II Transitory provisions
Disability discrimination
7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Jobseeker’s allowance
8 (1) If paragraph 2 of Schedule 2 to the Jobseekers Act 1995 has not come into force before the commencement of this Act, this Act shall have effect until the relevant commencement date as if a reference to unemployment benefit were substituted for—
(a) each of the references to jobseeker’s allowance in subsections (3) and (4) of section 16,
(b) the second reference to jobseeker’s allowance in subsection (5) of that section,
(c) the first reference to jobseeker’s allowance in subsection (1) of section 17, and
(d) the reference to jobseeker’s allowance in subsection (2) of that section.
(2) The reference in sub-paragraph (1) to the relevant commencement date is a reference—
(a) if an order has been made before the commencement of this Act appointing a day after that commencement as the day on which paragraph 2 of Schedule 2 to the Jobseekers Act 1995 is to come into force, to the day so appointed, and
(b) otherwise, to such day as the Secretary of State may by order appoint.
Armed forces
9 (1) If section 31 of the Trade Union Reform and Employment Rights Act 1993 has not come into force before the commencement of this Act, section 38 shall have effect until the relevant commencement date as if for subsection (4) there were substituted—
(4) Subsection (1)—
(a) does not apply to service as a member of the naval, military or air forces of the Crown, but
(b) does apply to employment by an association established for the purposes of Part XI of the Reserve Forces Act 1996.
(2) The reference in sub-paragraph (1) to the relevant commencement date is a reference—
(a) if an order has been made before the commencement of this Act appointing a day after that commencement as the day on which section 31 of the Trade Union Reform and Employment Rights Act 1993 is to come into force, to the day so appointed, and
(b) otherwise, to such day as the Secretary of State may by order appoint.
10 (1) If Part XI of the Reserve Forces Act 1996 has not come into force before the commencement of this Act, section 38 of this Act shall have effect until the relevant commencement date as if for “Part XI of the Reserve Forces Act 1996" there were substituted “ Part VI of the Reserve Forces Act 1980 ”.
(2) The reference in sub-paragraph (1) to the relevant commencement date is a reference—
(a) if an order has been made before the commencement of this Act appointing a day after that commencement as the day on which Part XI of the Reserve Forces Act 1996 is to come into force, to the day so appointed, and
(b) otherwise, to such day as the Secretary of State may by order appoint.