PART ONE
The Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 and the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2004 came into effect on 4th April 2004. The old Industrial Tribunal and Fair Employment Tribunal Rules 1996 have been revoked. All cases heard from this date onwards have been conducted under the new Constitution and Rules irrespective of the date in which the cases were lodged.
These rules have brought into force a number of significant changes. Although most of the Fair Employment Regulations mirror the Industrial Tribunal Regulations, this commentary is on the Industrial Tribunal Regulations.
Regulation 9 the 'Overriding Objective' has been introduced into the Northern Ireland Procedure for the first time and this concept is to enable Tribunals to deal with cases justly.
Regulation 9 (2) Dealing with a case justly includes, so far as practicable-
ensuring that the parties are on equal footing;
saving expense;
dealing with the case in ways which are proportionate to the complexity of the issues; and
ensuring that it is dealt with expeditiously and fairly.
Under Regulation 9(4) it states that the parties shall assist the tribunal to further the overriding objective.
Schedule 1 Rule 1 Originating Application Rule 3 Appearance by Respondent
Rule 1 clarifies that two or more originating applications may be presented in a single document by applicants who claim relief in respect of or arising out of the same set of facts. Notices of Appearance for different Respondents may be presented in a single document again providing that the relief claimed is in respect of or arises out of the same set of facts and also that all Respondents either intend to resist the application or do not intend to resist it.
Rule 4 Case Management
Under Rule 4 (1) "a tribunal may at any time, on the application of a party or of its own motion, give such directions on any matter arising in connection with proceedings as appear to the Tribunal to be appropriate"
It is likely that Tribunals will become more actively involved at an earlier stage.
Rule 4(3) states that "Directions under paragraph 1 may include any requirement relating to evidence (including the provision and exchange of witness statements), provision of further particulars and the provision of written answers to questions put to a party by the Tribunal"
This represents a major change and there are considerable difficulties relating to witness statements, further guidance is required.
Rule 4(8) Costs on a Hearing for Directions
Previously where there was a failure to comply with an Order a tribunal could strike out the originating application or debar the Respondent from defending. The Tribunal could not award costs unless requested to do so by a party. In addition to the power to strike out it now has the power to make an order for costs without a request from a party.
Rule 7 Prehearing Review
The maximum amount of the deposit as a condition of being permitted to proceed is increased from £150 to £500.
Rule 14 Costs
This new rule makes an important change on the issue.
In the old rule costs were allowed "where a party in bringing or conducting the proceedings acted in a manner that was scandalous, frivolous, vexations, abusive, disruptive or otherwise unreasonable."
The new Rule provides: Where, in the opinion of the Tribunal, a party has in bringing proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively disruptively or otherwise unreasonably, or a party's actions in bringing the proceedings have been misconceived the Tribunal may award costs. Under regulation 2 "misconceived"means having no reasonable prospect of success.
This rule allows two changes
• A Tribunal may award costs where a party's representatives have in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably.
• A Tribunal may also award costs if a party's actions in bringing proceedings have been misconceived(no reasonable prospect of suspect.)
Under Rule 14 (3) (a) There has been a dramatic increase in the costs a Tribunal can award without assessment. It has risen from £500-£10,000.
It should also be noted that costs can cover a part of the overall costs incurred by the other party. If an Applicant was to raise 10 grounds of complaint but was successful on only two, the Tribunal could make an award to the Applicant in respect of two of the complaints, but an award to the Respondent in respect of the misconceived or vexatious complaints or manner of pursuing them.
What is clear is that both clients and representatives should bear in mind the risks of a cost award as the circumstances in which costs can be awarded has widened significantly.
PART TWO
The Employment (Northern Ireland) Order 2003 will bring further changes in relation to Tribunal Reform and Dispute Resolution operational from October 2004. Part 11 and Part 111 of the Order deal with Industrial Tribunal Reform and Fair Employment Tribunal Reform respectively. This part of our commentary is on Industrial Tribunal Reform only. Part IV relates to Dispute Resolution.
Part 11 Industrial Tribunal Reform
Article 3: Conciliation
Article 3 provides for Industrial Tribunal Procedure Regulations to introduce a fixed period during which parties can avail of the conciliation service provided by the LRA. This short, voluntary fixed period of conciliation is to promote early settlement of disputes and to help avoid last-minute settlements on the 'doorstep of the tribunal'. In the event of the conciliation failing, the dispute will be passed back to the tribunal and a hearing date can then be fixed.
Article 4: Power to delegate prescription of forms
Article 4 provides for the mandatory use of prescribed forms both to institute tribunal proceedings and to enter a notice of appearance. This measure is designed to encourage the provision of more comprehensive information to allow the Tribunal to decide whether the application would benefit from a pre-hearing review. It could also encourage early settlement.
Article 5: Determination without a hearing
Article 5 provides for Industrial Tribunal Procedure Regulations to authorise the determination of proceedings without a hearing of cases in certain circumstances, both parties must consent to this course of action however. This measure was introduced to facilitate the rapid processing of simple cases.
Article 6: Practice directions
Article 6 enables Industrial Tribunal Rules of Procedure to be amended to enable the President to issue practice directions to Chairmen as to how procedures are to be applied. This is to increase consistency in tribunal determinations.
Article 7: Pre-hearing reviews
Article 7 clarifies the power of Industrial Tribunals to strike out an originating application at the pre-hearing stage. The objective is to improve the efficiency of case handling and restrict the amount of time that tribunals spend on considering cases that are obviously misconceived.
Article 8: Costs, expenses and allowances
Article 8 allows the tribunal to award costs against representatives who charge for their services. In its application, it is intended that this provision will deter vexatious or abusive behaviour on the part of paid representatives. It could mean that the representative may not recover fees from the client, or may be required to pay costs incurred by the client or other party to the case. In addition the regulations allow the tribunal, in the calculation of awards against unreasonable behaviour, a contribution towards the time the Applicant or Respondent has spent in preparing the case.
Part IV Dispute Resolution
Article 15: Statutory dispute resolution procedures
Article 15 gives effect to a set of minimum statutory disciplinary and grievance procedures in Schedule 1 of the Order to which employers and employees will be expected to adhere.
Article 16: Contracts of employment
Article 16 implies in every contract of employment a duty to observe the statutory dispute procedures. Employers and employees are prevented from contracting out of this implied term. This measure is to encourage parties to resolve their differences through the proper use of internal procedures.
Article 17: Non-completion of statutory procedure: adjustment of awards by industrial tribunals
Article 17 provides that, where the minimum statutory procedures specified under Article 15 have not been followed, an award made by an Industrial Tribunal may be varied. In other words a reduction in tribunal awards where the grievance procedure has not been used and an increase where the disciplinary procedure has not been used. The rationale behind the provision is to reduce the number of cases going forward to tribunal where employers or employees have failed to use existing internal workplace procedures.
Article 23: Procedural fairness in unfair dismissal
Article 23 allows the tribunal to make an automatic unfair dismissal ruling where an employer has failed to follow minimum disciplinary procedures in making the dismissal. However, it also allows the tribunal to disregard employers' procedural errors beyond the statutory minimum if adherence to the full procedure would have made no difference to the outcome of the case.
The Employment (Northern Ireland) Order 2003 (Commencement and Transitional Provisions) (Order) (Northern Ireland) 2004.
This order brought into force on 31st March 2004 equal pay questionnaires and on the 1st April 2004 time off for Union Learning Representatives. (Part V of the Order)