Employment tribunals - Jurisdiction of the tribunal

The Principal legislation

1. An appeal against an improvement or prohibition notice is heard by an Employment Tribunal.¹ The principal provisions which regulate the hearing of these appeals are to be found in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI. 2004/1861.

2. Schedule 4 of the Regulations specifically deals with appeals against notices and is referred to as the Employment Tribunals (Health and Safety – Appeals Against Improvement and Prohibition Notices) Rules of Procedure 2004. Schedule 1 deals with the powers available to Tribunals generally to deal with employment-related appeals. Schedule 4 specifically disapplies many of the general rules in Schedule 1 in proceedings concerned with appeals against Enforcement Notices.

Scope of the Rules

3. The rules for appeals against improvement or prohibition notices empower the Tribunal to do the following, but only upon receipt of an application from one of the parties ²:

• hold a pre-hearing review or a case management discussion;
• order a party to answer questions in writing or provide additional information to the Tribunal or the other party;
• make orders for witnesses to attend, or for witness statements to be prepared or exchanged;
• order a party to disclose documents;
• postpone or adjourn any hearing;
• appoint an assessor to sit with the Tribunal (see below);
• make any decision that has been agreed in writing by the parties beforehand;
• make a costs order up to £10,000 against either party, or in excess of that sum if agreed by the parties or taxed (assessed) by a County Court.

4. The Rules allow the appellant to:

• apply to suspend the operation of a prohibition notice pending the hearing of the appeal (NB the operation of an improvement notice will be automatically suspended by appeal proceedings until the appeal is heard – section 24(3)(a) HSWA);
• withdraw all or part of its appeal at any time;

The Employment Tribunal Panel

5. An appeal is heard by an Employment Tribunal comprising:

• a legally qualified chairman; and
• two other members, one representing employers, the other, employees.

6. A Tribunal hearing can proceed with just the chairman and one member if the parties consent. In that situation the chairman will have the casting vote.

7. The Rules allow the Chairman sitting alone to make orders in relation to any matter that appears to him to be appropriate to the proceedings. However, in appeals against Enforcement Notices, that power is limited and cannot be exercised proactively. The Tribunal or Chairman only has the power to make orders following an application by one of the parties. If you receive directions from a Tribunal, you may wish to check that they have been made following an application. ³

Assessors

8. Section 24(4) HSWA allows an assessor to be appointed for the purpose of any proceedings before the Tribunal, in order to assist the Tribunal members with any technical matters which may arise. An assessor should have special knowledge or experience in relation to the subject matter and any party may apply for an assessor to be appointed. As you are likely to have experience in explaining technical matters you may not need to make this application.

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Footnotes

1. Industrial Tribunals were renamed Employment Tribunals by the Employment Rights (Disputes Resolution) Act 1998 (c8)
2. Rule 7(1) The Employment Tribunals (Health and Safety – Appeals Against Improvement and Prohibition Notices) Rules of Procedure 2004
3. Rule 7(1) above