1. An appeal against an improvement or prohibition notice is heard by an Employment Tribunal.1 The principal rules which regulate the hearing of these appeals are to be found in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Prior to the 29th July 2013 there were different rules governing appeals against notices to those regulating the more mainstream employment related claims. This is no longer the case and an appeal against a notice is now dealt with like any other ‘claim’ to the Tribunal.
Rule 105 (2) of the new Regulations states that for the purposes of an appeal against an improvement notice or a prohibition notice Schedule 1 shall be treated as modified in the following ways-
The new rules require a prescribed formal response from HSE to any appeal and therefore any inspector receiving notice of an appeal must immediately contact Legal Adviser’s Office.
2. The Tribunal may at any stage of the proceedings, on its own initiative or on application by either party make a case management order. Such orders may be made, amongst other things, for the following:
i) Disclosure of any document
ii) Exchange of witness statements and experts reports
iii) The preparation of final appeal hearing bundles
iv) The drafting of case summaries and/or skeleton arguments on the applicable law
3. The Tribunal may, at any stage of the proceedings, either on its own initiative or on the application of a party, strike out all or part of an appeal or response on any of the following grounds:
A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.
4. An appeal is heard by an Employment Tribunal comprising:
5. 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.6. 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.
7. 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.