Schedules Schedule 5: Employment Tribunal Procedure Rules: Further provision
Part 1 of Schedule 5 relates to making and content of Employment Tribunal Procedure Regulations. Paragraph 1 inserts into the Employment Tribunals Act 1996 (the Act) the new Schedule A1 which is introduced by subsection (3) of the new section 37QA (inserted by subsection (4) of section 33). The new Schedule A1 makes a range of additional provision in relation to the making and content of Employment Tribunal Procedure Rules (covering such matters as the objectives of the Tribunal Procedure Committee in making Employment Tribunal Procedure Rules, the things Employment Procedure Rules may contain and the process for making Employment Procedure Tribunal Rules), which mirrors the corresponding provisions of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 in relation to Tribunal Procedure Rules, so that the powers and processes for Employment Tribunal Procedure Rules are appropriately aligned with those for making Tribunal Procedure Rules.
	Part 2 of Schedule 5 relates to other amendments of the Employment Tribunals Act 1996.
	Paragraph 2 is introductory and provides for the Employment Tribunals Act 1996 to be amended as provided in the subsequent paragraphs, many of which simply amend existing provision which operates by reference to Employment Tribunal Procedure Regulations so that it operates instead by reference to "Procedure Rules" (i.e. Employment Tribunal Procedure Rules).
	Paragraph 3 makes amendments to provisions about practice directions. Sub-paragraphs (1) to (5) amend the Act to provide for the Senior President of Tribunals and the territorial Presidents to make practice directions about the practice and procedure of employment tribunals. It also provides the power to vary or revoke directions made in exercise of the power, and the power to make different provision for different purposes (including different provision for different areas). Sub-paragraph (6) provides that directions made by the territorial Presidents may not be made without the approval of the Senior President of Tribunals, and the Lord Chancellor.
	Paragraph 4 amends the Act to make provision about mediation. Sub-paragraphs (1) and (2) amend the Act to provide that anyone making Procedure Rules or practice directions must give regard to the principles that a) mediation can only take place by agreement between parties and b) the outcome of mediation should not affect the outcome of the proceedings. Sub-paragraph (3) sets out that practice directions may provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings; and sub-paragraph (4) that a member may act as a mediator in a case even though the member has been selected to decide matters in the case.
	Paragraph 5 makes provision about preliminary hearings. Sub-paragraphs (1) and (2) make amendments to the Act to provide that if Procedure Rules authorise an employment tribunal to carry out a preliminary hearing, Procedure Rules may make provision for enabling the powers prescribed by the Procedure Rules to be exercised in connection with the preliminary hearing; and sub-paragraph (3) makes provision that the Procedure Rules may include provision for authorising any tribunal carrying out a preliminary hearing under the regulations to require a party to the proceedings to pay a deposit of an amount not exceeding £1,000 as a condition of: continuing to participate in those proceedings, or pursuing any specified allegations or arguments; and for prescribing the manner in which the amount of the deposit is determined, the consequences of non-payment, and the circumstances in which a deposit may be refunded or be paid over to another party. Sub-paragraph (4) sets out that Procedure Rules cannot increase the deposit above £1,000; sub-paragraph (5) sets out that Procedure Rules may not enable a power of striking out to be exercised in a preliminary hearing on a ground which does not apply outside a preliminary hearing; and sub-paragraph (6) transfers the power to increase the maximum deposit from the Secretary of State for BEIS to the Lord Chancellor. Sub-paragraph (7) omits the power to include in ET procedure regulations provision for authorising an employment tribunal to hear and determine separately any preliminary issue meeting a description set out by the regulations. Sub-paragraph (9) defines ‘preliminary hearing’ as a hearing in proceedings before an employment tribunal which takes place at a time before a hearing held for the purpose of determining them.
	Paragraph 6 makes provision in relation to proceedings in which issues concerning national security arise, so that provision which may presently be made in Employment Tribunal Procedure Regulations by the Secretary of State is made instead in regulations made by the Lord Chancellor.
	Paragraph 7 repeals section 10A of the Act, relating to the ability of employment tribunals to sit in private where confidential information is involved, which is covered by more general provisions about the things Employment Tribunal Procedure Rules may (like Tribunal Procedure Rules) contain.
	Paragraphs 8 and 9 amend provisions permitting Employment Tribunal Procedure Regulations to restrict publicity in cases involving sexual misconduct and disability respectively so that they permit this to be done by "Procedure Rules".
	Paragraph 10 introduces the term "reconsider" as an equivalent to the term "review", to account for equivalent terminology used in the ETs and EATs.
	Paragraph 11, similarly to paragraphs 8 and 9, amends provisions about Employment Tribunal Procedure Regulations regulating matters relating to costs and expenses so that they refer instead to "Procedure Rules" regulating those matters; and paragraph 12 likewise amends provisions permitting Employment Tribunal Procedure Regulations to make provision for payments in relation to preparation time to refer to "Procedure Rules" making such provision.
	Paragraph 13 makes amendments with the effect of transferring the power to make orders in respect of interest payable in pursuance of decisions of employment tribunals from the Secretary of State for BEIS to the Lord Chancellor.
	Paragraph 14 amends provisions permitting the recovery through the county court of sums payable in pursuance of a decision of an employment tribunal in accordance with employment tribunal procedure regulations, to refer to this being in accordance with "Procedure Rules".
	Paragraph 15 amends provisions permitting Employment Tribunal Procedure Regulations to make provisions relating to the requirement to contact ACAS before instituting proceedings, to refer instead to regulations made by the Secretary of State.
	Paragraph 16 amends provisions requiring Employment Tribunal Procedure Regulations to make provisions relating to conciliations procedures, so as to refer to "Procedure Rules"; and paragraph 16 similarly amends provisions permitting Employment Tribunal Procedure Regulations to provide time limits for an application for a declaration that a settlement sum is not be recoverable under the general law of contract, so they refer to "Procedure Rules".
	Paragraph 18 amends provisions relating to Practice Directions for the EAT so that they describe the power to make directions (as to practice and procedure) consistently with other powers to make practice directions.
	Paragraph 19 inserts into the Act a new section 30A making provision about EAT proceedings in which issues relating to national security arise. Subsection (1) of the new section permits the Lord Chancellor to make provisions about the composition of the EAT where the proceedings meet the criteria set out in subsections (2) and (3) – subsection (2) covering particular Crown employment proceedings where a Minister considers it expedient in the interests of national security and subsection (3) providing that an order under this section may be made by a judge of the EAT if the judge considers it expedient in the interests of national security. Subsection (4) sets out that the Lord Chancellor has the power to make the same regulations for the EAT as those under the national security provisions contained in sections 10(5), (6) and (7) for ETs; and subsection (5) permits references to things done under the national security provisions contained in sections 10(5) and (6) to be read across to the things done under subsection (4). Subsection (6) sets out that the powers set out in Section 10B to restrict publicity in ET cases involving national security also apply to the EAT. Subsection (7) sets out that references in the national security provisions contained in section 10B are to be read across to subsection (4) where applicable.
	Paragraphs 20 and 21 update provisions permitting Appeal Tribunal procedure rules to restrict publicity in cases involving sexual misconduct or disability respectively so that they refer to "Procedure Rules".
	Paragraph 22 updates provisions relating to permitting Appeal Tribunal procedure rules to regulate matters relating to costs and expenses so that they refer to "Procedure Rules".
	Paragraphs 23 to 26 make amendments to Part 3 of the Act, centred on a new section 37QB of the Act, providing powers for the Lord Chancellor to amend legislation in connection with Procedure Rules (on a similar model to that provided for Tribunal Procedure Rules. Paragraph 23 simply amends the heading of Part 3 to refer to "General and Supplementary". Paragraph 24 inserts the new section 37QB, providing powers for the Lord Chancellor to amend, repeal or revoke any enactment in order to facilitate the making of Procedure Rules or in consequence of the provisions set out in Schedule A1 on the making of Procedure Rules or of any Procedure Rule. It also defines "enactment" as meaning any enactment whenever passed or made, including an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978. Paragraph 25 makes amendments to ensure that any order making amendments to primary legislation must be by the affirmative procedure. Paragraph 26 updates section 42(1) to remove definitions of Appeal Tribunal procedure regulations" and "employment tribunal procedure regulations" and replace them with the definition of Procedure Rules for the ET and EAT. It also removes an extraneous "and" immediately prior to the definition of "trade union". It also inserts a definition of "Tribunal Procedure Committee" to mean the committee of that name constituted under Part 2 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007.
	Part 3 of the Schedule outlines related amendments of other legislation. Paragraph 27 amends the Employment Rights Act 1996 to provide that, where an ET determines a complaint related to unfair dismissal in the same proceedings as a question around eligibility for or the amount of a redundancy payment, the provisions setting out that the employee shall not, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy have no effect insofar as it relates to the unfair dismissal proceedings.
	Paragraph 28 amends the Tribunals, Courts and Enforcement Act 2007 to set out that the Senior President of Tribunals cannot delegate the functions set out in paragraph 2 of Schedule A1 of the Employment Tribunals Act 1996.
	Paragraph 29 amends the Tribunals, Courts and Enforcement Act 2007 to provide for additional members to be added to the TPC, increasing the number of persons who may be appointed by the Lord Chancellor to four and requiring that at least one of the appointees must have experience of practice in the ET and the EAT or experience of advising persons involved in ET and EAT proceedings. It also increases the number of persons appointed by the Lord Chief Justice from three to four, one of whom must be a judge, or other member, of the Employment Appeal Tribunal or a member of a panel of members of employment tribunals (whether or not a panel of Employment Judges).