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108 provisions
40 Deposit orders
(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).
(2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.
(3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order.
(4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates.
(5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).
(6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).
(7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order—
(a) the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and
(b) the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders),
otherwise the deposit must be refunded.
(8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.
(1) The Tribunal may regulate its own procedure and must conduct any hearing in the manner it considers fair, having regard to the overriding objective.
(2) The Tribunal must seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence.
(3) The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.
(4) This rule is not restricted by any other rule contained in this Part.
The Tribunal may consider any written representations from a party, including a party who does not propose to attend the hearing, if they are sent to the Tribunal and the other parties, and must do so if they are sent to the Tribunal and the other parties not less than 7 days before the hearing.
(1) Where a witness is called to give oral evidence, any witness statement of that person ordered by the Tribunal must stand as that witness’s evidence in chief unless the Tribunal orders otherwise.
(2) Witnesses are required to give their oral evidence on oath or affirmation.
(3) The Tribunal may exclude from the hearing any person who is to appear as a witness in the proceedings until such time as that person gives evidence, if it considers it in the interests of justice to do so.
(1) Subject to rules 49 (privacy and restrictions on disclosure) and 93 (national security proceedings) and the following paragraphs, any witness statement which stands as evidence in chief must be available for inspection during the course of the hearing by those attending the hearing.
(2) Where a hearing is conducted by electronic communication under rule 46 (hearings by electronic communication), inspection of any witness statement may be otherwise than during the course of a hearing.
(3) This rule does not apply where the Tribunal decides that all or any part of a witness statement is not to be admitted as evidence, in which case the witness statement or that part must not be available for inspection.
The Tribunal may impose limits on the time that a party may take in presenting evidence, questioning witnesses or making submissions, and may prevent the party from proceeding beyond any time so allotted.
A hearing may be conducted, in whole or in part, by use of electronic communication (including by telephone) provided that the Tribunal considers that it would be just and equitable to do so and provided that those attending the hearing are able to hear what the Tribunal hears and, so far as practicable, see any witness as seen by the Tribunal.
If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.
48 Conversion from preliminary hearing to final hearing and vice versa
The Tribunal conducting a preliminary hearing may order that it be treated as a final hearing, or vice versa, if the Tribunal is properly constituted for the purpose and if it is satisfied that no party is materially prejudiced by the change.
(1) The Tribunal may, on its own initiative or on the application of a party, make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person.
(2) In considering whether to make an order under this rule, the Tribunal must give full weight to the principle of open justice and to the Convention right to freedom of expression.
(3) Any order made under this rule may require—
(a) that a hearing that would otherwise be held in public be conducted, in whole or in part, in private;
(b) that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record;
(c) that measures are to be taken to prevent witnesses at a public hearing being identifiable by members of the public;
(d) that a restricted reporting order is in place within the terms of section 11 (restriction of publicity in cases involving sexual misconduct) or 12 (restriction of publicity in disability cases) of the Employment Tribunals Act;
(e) that the name, address or other information of, or relating to, any person be redacted from a claim form, response form, witness statement or any other document in the proceedings.
(4) Any party, or other person with a legitimate interest, who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing.
(5) Where an order is of the kind mentioned in paragraph (3)(d), the order—
(a) must specify the person whose identity is protected,
(b) must specify the duration of the order,
(c) may specify particular matters of which publication is prohibited as likely to lead to that person’s identification, and
(d) may specify that it also applies to any other proceedings.
(6) The Tribunal must ensure that a notice that an order has been made under this rule in respect of particular proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place.
(7) ”Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998.
Where a party advancing a claim informs the Tribunal, either in writing or in the course of a hearing, that their claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the party responding or replying to the claim may make for a costs order, preparation time order or wasted costs order.
Where a claim, or part of it, has been withdrawn under rule 50 (end of claim), the Tribunal must issue a judgment dismissing it (which means that the party advancing it may not commence a further claim against the party responding or replying to it raising the same, or substantially the same, complaint) unless—
(a) the party advancing the claim has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so, or
(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.
(1) A preliminary hearing is a hearing at which the Tribunal may do one or more of the following—
(a) conduct a preliminary consideration of the claim with the parties and make a case management order (including an order relating to the conduct of the final hearing);
(b) determine any preliminary issue;
(c) consider whether a claim, response or reply, or any part, should be struck out under rule 38 (striking out)
(d) make a deposit order under rule 40 (deposit orders);
(e) explore the possibility of settlement or alternative dispute resolution (including judicial mediation , judicial assessment or dispute resolution appointment).
(2) There may be more than one preliminary hearing in any case.
(3) “Preliminary issue” means any substantive issue which may determine the complaint or the Tribunal’s jurisdiction (for example, an issue as to whether a complaint is brought in time).
(4) In this rule—
“dispute resolution appointment” means a preliminary hearing (or part of a preliminary hearing) which is not a judicial assessment and which may be held without the consent of the parties and with a view to the Tribunal, on the basis of the available material, providing the parties with an evaluation of the prospects of success of a claim, response or reply and potential remedies;
“judicial assessment” means a preliminary hearing (or part of a preliminary hearing) held with the consent of the parties with a view to the Tribunal, on the basis of the available material, providing the parties with an evaluation of the prospects of success of a claim, response or reply and potential remedies.
(1) The Tribunal may, on its own initiative or on the application of a party, direct a preliminary hearing.
(2) The Tribunal must give the parties reasonable notice of the date of the preliminary hearing. In the case of a hearing involving any preliminary issue, this must not be less than 14 days’ notice of the date of the preliminary hearing and the notice must specify the preliminary issues that are to be, or may be, decided at the hearing.
(1) Preliminary hearings must be held in private, except where paragraph (2) applies.
(2) If the preliminary hearing involves a determination under rule 52(1)(b) (preliminary issue) or (c) (strike out), any part of the hearing relating to such a determination must be held in public.
(3) Where paragraph (2) applies, the Tribunal may direct that the entirety of the hearing is to be held in public.
(4) Paragraphs (2) and (3) are subject to rules 49 (privacy and restrictions on disclosure) and 93 (national security proceedings).
(1) A final hearing is a hearing at which the Tribunal determines the claim or such parts as remain outstanding, following the initial consideration (under rule 27) and any preliminary hearing.
(2) There may be different final hearings for different issues (for example, liability, remedy or costs).
(1) The Tribunal must give the parties not less than 14 days’ notice of the date of a final hearing.
(2) Notice of a final hearing may be given before the date that the response is to be presented under rule 17(1) (response), or a reply is to be presented under rule 26(1) (replying to an employer’s contract claim) provided the date of the hearing is no sooner than 14 days after the date on which the response or reply is to be presented to the Tribunal in accordance with each of those rules.
Decisions made without a hearing must be communicated in writing to the parties, identifying the member or members of the Tribunal who have made the decision, or in the case of a decision made by a member of staff under rule 7(1) (delegation to staff), identifying the member of staff who has made the decision.
(1) Where there is a hearing the Tribunal may either announce its decision in relation to any issue at the hearing or reserve it to be sent to the parties as soon as practicable in writing.
(2) If the decision is announced at the hearing, a written record of the decision must be provided to the parties.
(3) Paragraph (2) does not apply to decisions concerned only with the conduct of a hearing unless a party requests that a specific decision is so recorded.
(4) The written record must be approved by the presiding member.
(1) The Tribunal must give reasons for its decision on any disputed issue, whether substantive or procedural, including any decision on an application for reconsideration or for an order for costs, preparation time or wasted costs.
(2) In the case of a decision given in writing the reasons must also be given in writing.
(3) In the case of a decision announced at a hearing, the reasons may be given orally at the hearing or reserved to be given in writing which may, but need not, be as part of the written record of the decision.
(4) In respect of a case management order, where reasons have been given orally at a hearing, the presiding member must announce that written reasons will not be provided unless requested by any party—
(a) at the hearing, or
(b) by a written request received by the Tribunal within 14 days of the sending of the written record of the decision,
and the written record of the decision must repeat that information.
(4A) In respect of a judgment—
(a) where reasons are given in writing under paragraph (2) or reserved to be given in writing under paragraph (3), those reasons must be full reasons;
(b) where reasons are given orally at a hearing under paragraph (3), those reasons may be either—
(i) summary reasons, or
(ii) full reasons.
(4B) Where summary reasons are given under paragraph (4A)(b)(i), the presiding member must announce that the reasons given are summary reasons and that written summary reasons will not be provided unless requested by any party—
(a) at the hearing, or
(b) by a written request received by the Tribunal within 14 days of the sending of the written record of the decision,
and the written record of the decision must repeat that information.
(4C) Where written summary reasons are provided further to a request under paragraph (4B), they must state that written full reasons will not be provided unless requested by any party by a written request received by the Tribunal within 14 days of the sending of the written summary reasons.
(4D) Where full reasons are given under paragraph (4A)(b)(ii), the presiding member must announce that written full reasons will not be provided unless requested by any party—
(a) at the hearing, or
(b) by a written request received by the Tribunal within 14 days of the sending of the written record of the decision,
and the written record of the decision must repeat that information.
(4E) If the Tribunal receives a request for written summary reasons in accordance with paragraph (4B), the Tribunal may, if it considers it appropriate to do so, provide written full reasons.
(5) If the Tribunal does not receive a request for written reasons under paragraph (4) , (4C) or (4D), the Tribunal must provide written reasons for a case management order or written full reasons for a judgment only if requested to do so by the Employment Appeal Tribunal or a court.
(6) The reasons given for any decision must be proportionate to the significance of the issue and for case management orders may be very short.
(7) In this rule—
“full reasons” are reasons which—
identify the issues which the Tribunal has determined,
state the findings of fact made in relation to those issues,
concisely identify the relevant law, and state how that law has been applied to those findings in order to decide the issues, and
where the judgment includes a financial award, identify by means of a table or otherwise, how the amount to be paid has been calculated;
“summary reasons” are reasons which provide a brief explanation of why the Tribunal has reached its decision in respect of each issue.
(8) Written reasons must be approved by the presiding member, other than written reasons for decisions made by a member of staff under rule 7(1) (delegation to staff).
(1) If it is impossible or not practicable for the written record or written reasons to be approved by the presiding member as a result of death, incapacity or absence, it must be approved—
(a) in the case of a Tribunal composed of more than one member, by the other member or members;
(b) in the case of a Tribunal composed of a single member, by the relevant post-holder.
(2) In this rule, the relevant post-holder is—
(a) in England and Wales, the President (England and Wales) or a Regional Employment Judge;
(b) in Scotland, the President (Scotland) or the Vice President.
If the parties agree in writing or orally at a hearing upon the terms of any order or judgment the Tribunal may, if it thinks fit, make such order or judgment, in which case it must be identified as having been made by consent.
A party must comply with a judgment or order for the payment of an amount of money within 14 days of the date of the judgment or order, unless—
(a) the judgment, order, or any of these Rules specifies a different date for compliance, or
(b) the Tribunal has stayed (or in Scotland sisted) the proceedings or judgment.
(1) Subject to paragraph (2) and rules 49 (privacy and restrictions on disclosure) and 93 (national security proceedings), a copy of any judgment and any written full reasons for a judgment must be entered into the Register.
(2) Paragraph (1) does not apply to—
(a) judgments for withdrawn claims under rule 51 (dismissal following withdrawal);
(b) a refusal of an application for reconsideration of a judgment under rule 70(2) (process for reconsideration) where the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked on the grounds that substantially the same application for reconsideration has already been made and refused.
67 Correction of clerical mistakes and accidental slips
(1) The Tribunal may at any time correct any clerical mistake or other accidental slip or omission in any order, judgment or other document produced by the Tribunal.
(2) If a correction is made under this rule, any published version of the document must also be corrected.
(3) If any document is corrected by the Tribunal under this rule, a copy of the corrected version, approved by the presiding member of that Tribunal or in accordance with rule 61 (absence of presiding member), must be sent to all the parties.
(4) If any document is corrected by a member of staff in accordance with rule 7(1) (delegation to staff) and this rule, a copy of the corrected version, approved by that member of staff, must be sent to all the parties.
(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so.
(2) A judgment under reconsideration may be confirmed, varied or revoked.
(3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion.
Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal no later than 14 days of the later of—
(a) the date on which the written ... judgment sought to be reconsidered was sent to the parties, ...
(b) the date that any written summary reasons were sent, if these were sent separately from the judgment, or
(c) the date that any written full reasons were sent, if these were sent separately from the judgment.
(1) The Tribunal must consider any application made under rule 69 (application for reconsideration).
(2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal.
(3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application.
(4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice.
(5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.
71 Reconsideration by the Tribunal on its own initiative
Where the Tribunal proposes to reconsider a judgment on its own initiative, it must inform the parties of the reasons why the decision is being reconsidered and the judgment must be reconsidered (as if an application had been made and not refused) in accordance with rule 70(3) to (5) (process for reconsideration).
In this Part—
“paying party” means a party liable to pay costs;
“preparation time” means time spent by the receiving party (including by any of the receiving party’s employees or advisers) in working on the case, except for time spent at any final hearing;
“receiving party” means a party entitled to be paid costs.
(1) A costs order is an order that the paying party make a payment to—
(a) the receiving party in respect of the costs that the receiving party has incurred while represented by a legal representative or a lay representative, or
(b) another party or witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing.
(2) A preparation time order is an order that the paying party make a payment to the receiving party in respect of the receiving party’s preparation time while not represented by a legal representative.
(3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings.
(4) The Tribunal may decide in the course of the proceedings that a party is entitled to either a costs order or a preparation time order but may defer its decision on the kind of order to make until a later stage in the proceedings.
74 When a costs order or a preparation time order may or must be made
(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.
(2) The Tribunal must consider making a costs order or a preparation time order where it considers that—
(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,
(b) any claim, response or reply had no reasonable prospect of success, or
(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.
(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.
(4) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal must order the respondent to pay the costs incurred as a result of the postponement or adjournment if—
(a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing, and
(b) the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment.
(1) A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.
(2) The Tribunal must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order).
(1) A costs order may order the paying party to pay—
(a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;
(b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined—
(i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles;
(ii) in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019, or by the Tribunal applying the same principles;
(c) another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing;
(d) an amount agreed between the paying party and the receiving party in respect of the receiving party’s costs.
(2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative must not exceed the rate under rule 77(2) (the amount of a preparation time order).
(3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000.
(1) The Tribunal must decide the number of hours in respect of which a preparation time order should be made, on the basis of—
(a) information provided by the receiving party on the preparation time spent, and
(b) the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required.
(2) The hourly rate is £44 and increases on 6 April each year by £1.
(3) The amount of a preparation time order must be calculated by multiplying the number of hours assessed under paragraph (1) by the rate under paragraph (2) which is applicable to the year beginning 6 April in which the preparation time was spent.
(1) A wasted costs order is an order against a representative in favour of any party where that party has incurred wasted costs.
(2) The Tribunal may make a wasted costs order in favour of a party, whether or not that party is represented, and may also make such an order in favour of a representative’s own client.
(3) A wasted costs order may not be made against a representative where that representative is representing a party in their capacity as an employee of that party.
(4) In this rule, and in rules 79 (effect of a wasted costs order), 80 (procedure) and 82 (ability to pay), “representative” means a party’s legal representative or lay representative or any employee of such representative, but it does not include a person who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit.
(5) “Wasted costs” means costs incurred—
(a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative, or
(b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay.
A wasted costs order may order a representative to pay the whole or part of any wasted costs of the party in whose favour the order has been made, or to disallow any wasted costs otherwise payable to the representative, including an order that the representative repay to their client any costs which have already been paid. The amount to be paid, disallowed or repaid must in each case be specified in the order.