Statutory Instrument 1996 No. 1758

The Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) (Amendment) Regulations 1996

---

© Crown Copyright 1996

Statutory Instruments printed from this website are printed under the superintendence and authority of the Controller of HMSO being the Queen's Printer of Acts of Parliament.

The legislation contained on this web site is subject to Crown Copyright protection. It may be reproduced free of charge provided that it is reproduced accurately and that the source and copyright status of the material is made evident to users.

It should be noted that the right to reproduce the text of Statutory Instruments does not extend to the Queen's Printer imprints which should be removed from any copies of the Statutory Instrument which are issued or made available to the public. This includes reproduction of the Statutory Instrument on the Internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document.

The text of this Internet version of the Statutory Instrument which is published by the Queen's Printer of Acts of Parliament has been prepared to reflect the text as it was Made. A print version is also available and is published by The Stationery Office Limited as the The Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) (Amendment) Regulations 1996, ISBN 0110627245. The print version may be purchased by clicking here. Braille copies of this Statutory Instrument can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail:customer.services@tso.co.uk.

Further information about the publication of legislation on this website can be found by referring to the Frequently Asked Questions.

To ensure fast access over slow connections, large documents have been segmented into "chunks". Where you see a "continue" button at the bottom of the page of text, this indicates that there is another chunk of text available.

1996 No. 1758

INDUSTRIAL TRIBUNALS

The Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) (Amendment) Regulations 1996

The Secretary of State, in exercise of the powers conferred on him by section 128(1), section 154(3), and paragraph 1 of Schedule 9 to the Employment Protection (Consolidation) Act 1978^[1] (as extended by section 62 of the Disability Discrimination Act 1995^[2]), and of all other powers enabling him in that behalf, and after consultation with the Council on Tribunals, hereby makes the following Regulations:—

Citation, commencement and interpretation
    1.—(1)  These Regulations may be cited as the Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) (Amendment) Regulations 1996.

    (2)  Except for regulations 9 and 13, which shall come into force on the day on which section 8 of the Disability Discrimination Act 1995 comes into force, these regulations shall come into force on 31st July 1996.

    (3)  In these Regulations, unless the context otherwise requires, "the Principal Regulations" means the Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993^[3] and any reference to a rule in a Schedule is a reference to a rule in that Schedule to the Principal Regulations.

Amendments of regulations
    2.    For regulation 9 of the Principal Regulations substitute—
    "9.—(1)  The Secretary shall maintain a Register of applications, appeals and decisions at the Office of the Tribunals which shall be open to the inspection of any person without charge at all reasonable hours.

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

Amendments of rules in Schedule 1
    3.    After rule 1(5) of Schedule 1, insert—
"  (5A)  Paragraph (1)(b) does not apply to an originating application in respect of an application under section 3C of the Employment Agencies Act 1973^[4] for the variation or revocation of a prohibition order, but on any such application the Secretary of State shall be treated as the respondent for the purposes of these rules."

    4.    In rule 3(1) of Schedule 1, for "14 days" substitute "21 days".

    5.    For rules 3(3) and (4) of Schedule 1, substitute—
"  (3)  A notice of appearance which—
(a) is presented to the Secretary after the time appointed by this rule for entering appearances, and

(b) sets out the reasons why the notice has been presented after that time

shall be deemed to include an application under rule 15 for an extension of the time so appointed on the grounds disclosed by those reasons.

    (4)  Where a chairman grants an application under rule 15 for an extension of the time so appointed (including an application deemed to be made by virtue of paragraph (3)) he shall determine whether, having regard to the grounds of the application, it would have been reasonably practicable for the respondent to present his notice of appearance within the time so appointed. If the chairman determines that it would have been so practicable, the respondent shall be treated as having acted unreasonably for the purposes of rule 12(1) and the chairman shall make an order under that rule if he considers it appropriate."

    6.    Omit rule 3(5) of Schedule 1.

    7.    In rule 7(7) of Schedule 1, for "remit" substitute "pay".

    8.    For rule 7(8) of Schedule 1, substitute—
"  (8)  The deposit paid by a party under an order made under this rule shall be refunded to him in full except where rule 12(8) applies."

    9.    In rule 10(4)(a) of Schedule 1, after "the 1986 Act" omit "or" and after "the 1976 Act" insert "or the Disability Discrimination Act 1995".

    10.    Omit rule 10(8) of Schedule 1.

    11.    In rule 13(8)(c) of Schedule 1, for "rule 11(6)" substitute "rule 11(7)".

    12.    In rule 13(9) of Schedule 1, omit "and (5)".

    13.    After rule 14(1) of Schedule 1, insert—
"  (1A)  In proceedings on a complaint under section 8 of the Disability Discrimination Act 1995 in which evidence of a personal nature is likely to be heard by the tribunal, it may at any time before promulgation of its decision in respect of an originating application, either on the application of the complainant made by notice to the Secretary or of its own motion, make a restricted reporting order.

    (1B)  Where the tribunal makes a restricted reporting order under paragraph (1A) and that complaint is being dealt with together with any other proceedings, the tribunal may direct that the order applies also in relation to those other proceedings or such part of them as the tribunal may direct."

    14.    After rule 19 of Schedule 1, insert—

"References to the European Court of Justice
    19A.    Where a tribunal makes an order referring a question to the European Court of Justice for a preliminary ruling under Article 177 of the Treaty establishing the European Community, the Secretary shall send a copy of the order to the Registrar of that Court but shall not do so until the time for appealing against the order has expired or, if an appeal is made within that time, until the appeal has been determined or otherwise disposed of."

    15.    In rule 20(3)(a) of Schedule 1, for "the Department of Employment (Redundancy and Insolvency Branch) at Caxton House, Tothill Street, London SW1H 9NF" substitute "the Department of Trade and Industry (Industrial Relations Directorate 2) at 1 Victoria Street, London SW1H 0ET".

    16.    After rule 20(7) of Schedule 1, insert—
"  (7A)  Paragraph (7) does not apply in relation to documents or notices falling within a description of documents or notices in respect of which the Secretary and the Advisory, Conciliation and Arbitration Service have agreed that copies need not be sent."

Amendments of rules in Schedule 2
    17.    For rules 8A(1) to (10) of Schedule 2, substitute—
"  (1)  In any case involving an equal value claim where a dispute arises as to whether work is of equal value to other work in terms of the demands made on the person employed on the work (for instance under such headings as effort, skill and decision) (in this rule, hereinafter referred to as "the question") the tribunal shall, except in cases where it is satisfied that there are no reasonable grounds for determining the question in the affirmative, determine whether to require an expert to prepare a report with respect to the question.

    (2)  Before determining under paragraph (1) whether to require an expert to prepare a report the tribunal shall give the parties an opportunity to make representations to the tribunal as to whether an expert should be so required.

    (3)  Where the tribunal has determined not to require an expert to prepare a report it may nevertheless, at any time during its consideration of the question, require an expert to prepare a report, but shall not do so unless it has given the parties a further opportunity to make representations to the tribunal as to whether an expert should be so required.

    (4)  Any requirement to prepare a report shall be made in writing and shall set out—
(a) the name and address of each of the parties;

(b) the address of the establishment at which the applicant is (or, as the case may be, was) employed;

(c) the question;

(d) the identity of the person with reference to whose work the question arises;

(e) the date by which the expert is required to send his report to the tribunal; and

(f) the length of the intervals, during the currency of the requirement to prepare the report, before the expiration of which the expert must send progress reports pursuant to paragraph (8).


  The Secretary shall send a copy of the requirement to each of the parties together with a notice informing them that a party who unreasonably delays the preparation of the expert's report may have an award of expenses made against him, which may include an award in respect of the expert's fees, or have his originating application or notice of appearance struck out.

    (5)  The requirement shall stipulate that the expert shall—
(a) take account of all such information supplied and all such representations made to him as have a bearing on the question;

(b) before drawing up his report, produce and send to the parties a written summary of the said information and representations and invite the representations of the parties upon the material contained therein;

(c) make his report to the tribunal in a document which shall reproduce the summary and contain a brief account of any representations received from the parties upon it, any conclusion he may have reached upon the question and the reasons for that conclusion or, as the case may be, for his failure to reach such a conclusion;

(d) take no account of the difference of sex and at all times act fairly.


    (6)  Where a tribunal requires an expert to prepare a report, it shall adjourn the hearing.

    (7)  In paragraphs (8), (9), (10A) and (10B), "the required date" means the most recent date specified as the date by which the expert must send his report to the tribunal either in the requirement made upon him under paragraph (4) or in a notice given to him under paragraph (10A).

    (8)  Before the expiration of each interval specified in the requirement given to the expert under paragraph (4), the expert shall send a progress report to the tribunal—
(a) stating whether he considers that he will be able to send his report to the tribunal by the required date; and

(b) if he considers that he will be unable to do so, giving the reasons for the delay and the date by which he now expects to send his report to the tribunal.


  Where a progress report states that the expert considers that he will be unable to send his report to the tribunal by the required date the Secretary shall send a copy to each party.

    (9)  If at any time when a progress report under paragraph (8) is not imminent, the expert comes to the view that he will be unable to send his report to the tribunal by the required date, he shall give notice in writing to the tribunal—
(a) stating that fact; and

(b) giving the reasons for the delay and the date by which he now expects to send his report to the tribunal.


  The Secretary shall send a copy of any such notice to each party.

    (10)  In giving the reasons for any delay, pursuant to paragraph (8) or (9), the expert shall, in particular, state whether he considers that any action (including an omission) by a party has contributed to the delay and, if he so considers—
(i) identify the party,

(ii) give particulars of the action,

(iii) describe how it has contributed to the delay, and

(iv) give an assessment of the extent to which the delay is attributable to it.


    (10A)  On receiving a progress report under paragraph (8) or a notice under paragraph (9) stating that the expert considers that he will be unable to send his report to the tribunal by the required date, the tribunal shall do one of the following—
(a) give written notice to the expert that he is still required to send the report by the required date;

(b) give written notice to the expert substituting a later date as the required date; or

(c) if, but only if, it considers that it would be in the interests of justice to replace the expert, revoke, by notice in writing to the expert, the requirement to prepare a report;

but shall not do so before it has informed the parties of the action it proposes to take and given each party the opportunity to make representations.

    (10B)  Paragraph (10A) shall also apply where the expert does not send his report to the tribunal by the required date but as if sub-paragraph (a) were excluded.

    (10C)  Where, acting under paragraph (10A), a tribunal has revoked the requirement made upon an expert to prepare a report it shall require another expert to prepare a report by proceeding under this rule as if it had just determined to require an expert to prepare a report, and the rule shall apply accordingly.

    (10D)  Where in giving the reasons for any delay pursuant to paragraph (8) or (9), the expert has, in accordance with paragraph (10), stated that an action by a party has contributed to the delay, the tribunal shall consider whether the party has unreasonably delayed the preparation of the expert's report and, if it so considers, shall either—
(a) make an order under and in accordance with rule 12, or

(b) strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance and, where appropriate, direct that a respondent shall be debarred from defending altogether;

but the tribunal shall not exercise its powers under this paragraph without giving the party an opportunity to make representations.

    (10E)  Notwithstanding rule 12(1)(b), the tribunal may, in making an order under rule 12 in pursuance of paragraph (10D), order that the party shall pay to the Secretary of State the whole, or any part, of any fees and allowances paid or payable to the expert in respect of the time so far spent by him in carrying out work pursuant to the requirement to prepare a report."

    18.    In rule 8A(13) of Schedule 2 for "(3)", substitute "(5)", and for "paragraph (1) shall again apply." substitute "the tribunal shall proceed under this rule as if it had just determined to require an expert to prepare a report, and the rule shall apply accordingly.".

    19.    In rule 8A(16) of Schedule 2, omit "shall be made in accordance with paragraph (2) and", and after that rule insert—
"  (16A)  Paragraphs (4), (7) to (10B), (10D) and (10E) shall apply in relation to a requirement under paragraph (15) as if that requirement was a requirement to prepare a report except that—
(a) the duty on the Secretary under paragraph (4) to send a notice concerning unreasonable delay by the parties of the preparation of the expert's report shall not apply;

(b) for the purpose of such application the following sub-paragraphs shall be substituted for the sub-paragraphs of paragraph (10A)—
"(a) give written notice to the expert that he is still required to send the reply by the required date;

(b) give written notice to the expert substituting a later date as the required date;

(c) notify the expert in writing that the requirement is cancelled without requiring another expert to fulfil it; or
(d) so notify the expert and require another expert to fulfil the requirement in accordance with paragraph (15);" and;

(c) the tribunal may decide not to require the expert to send progress reports to the tribunal if it considers the requirement to be inappropriate in the circumstances and in that event—
(i) paragraphs (4)(f) and (8) shall not apply; and

(ii) paragraph (9) shall apply if the expert at any time comes to the view that he will be unable to send his reply to the tribunal by the required date."

    20.    In rule 9(2D)(b) of Schedule 2, for "8A(2)" substitute "8A(4)" and for "4(1A)" substitute "4(2A)".

    21.    In rule 10(10)(a) of Schedule 2, for "reviewed, revoked or varied by certificate" substitute "revoked or varied under the chairman's hand".

    22.    In rule 12(2A) of Schedule 2, for "the investigations carried out by the expert" substitute "any investigations carried out by an expert".

    23.    In rule 13(8)(c) of Schedule 2, for "rule 11(6)" substitute "rule 11(7)".

    24.    In rule 13(9) of Schedule 2, omit "and (5)".

    25.    In rule 13(6B) of Schedule 2, for "8A(4)" substitute "8A(6)".

    26.    In rule 20(3)(a) of Schedule 2, for "the Department of Employment (Redundancy and Insolvency Branch) at Caxton House, Tothill Street, London SW1H 9NF" substitute "the Department of Trade and Industry (Industrial Relations Directorate 2) at 1 Victoria Street, London SW1H 0ET".

    27.    After rule 20(7) of Schedule 2, insert—
"  (7A)  Paragraph (7) does not apply in relation to documents or notices falling within a description of documents or notices in respect of which the Secretary and the Advisory, Conciliation and Arbitration Service have agreed that copies need not be sent."

Amendments of rules in Schedule 3
    28.    In rule 14(3) of Schedule 3, for "time of the appeal" substitute "title of the appeal".

Transitional provision
    29.    The amendments made by regulations 4, 5, 6, 12 and 24 do not apply in relation to proceedings instituted before 31st July 1996.

John M Taylor,

Parliamentary Under Secretary of State for Competition and Consumer Affairs, Department of Trade and Industry

8th July 1996

These Regulations amend the principal regulations prescribing the procedural rules for proceedings before industrial tribunals in Scotland.

The Regulations come into force on 31st July 1996 except for those relating to proceedings under the Disability Discrimination Act 1995 ("the 1995 Act") which come into force on the day on which section 8 of the 1995 Act comes into force; that is to say, when it becomes possible to take proceedings against employers under the 1995 Act.

The Regulations—
(a) provide that a notice of appearance must be presented within 21 days of the respondent receiving a copy of the applicant's originating application instead of 14 days;

(b) require tribunals to give extended reasons for their decisions in proceedings brought under the 1995 Act;

(c) make provision to enable tribunals to make restricted reporting orders in proceedings brought under the 1995 Act;

(d) amend the procedure applying in equal value cases to the appointment of an expert and the preparation of an expert's report so that—
(i) the amendment to section 2A of the Equal Pay Act 1970 made by the Sex Discrimination and Equal Pay (Miscellaneous Amendments) Regulations 1996 (S.I. 1996/438), having the effect that the tribunal does not have to appoint an expert before determining whether work is of equal value, is reflected in the rules of procedure;

(ii) the tribunal is required to set a date by which an expert's report is required to be sent to it; and

(iii) a party whom the tribunal finds to have delayed the preparation of an expert's report unreasonably will either have an award of costs made against him or have his originating application or notice of appearance struck out;

and
(e) make a number of other minor changes to the rules.

The Regulations contain a transitional provision.

[1] 1978 c. 44; paragraph 1 of Schedule 9 was amended by the Employment Act 1980 (c. 42), Schedule 1, paragraph 26; by the Equal Pay (Amendment) Regulations 1983 (S.I. 1983/1794), regulation 3; by the Employment Act 1989 (c. 38), Schedule 6, paragraph 26 and by the Trade Union Reform and Employment Rights Act 1993 (c. 19), section 40 and Schedule 8, paragraph 28(a). back

[2] 1995 c. 50. back

[3] S.I. 1993/2688, amended by the Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) (Amendment) Regulations 1994 (S.I. 1994/538). back

[4] 1973 (c. 35); section 3C was inserted into the Act by the Deregulation and Contracting out Act 1994 (c. 40), section 35 and Schedule 10, paragraph 1(3). back