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EMPLOYMENT RIGHTS (DISPUTE RESOLUTION) ACT 1998

UK Public General Acts

Version 01/10/2010

1998 CHAPTER 8

Default Geographical Extent: E+W+S


  • Part I (E+W+S+N.I.). Employment tribunals
    • Renaming of tribunals (E+W+S+N.I.)
    • Hearings etc.
    • Other provisions
  • Part II. Other methods of dispute resolution
    • Arbitration
    • Compromise agreements
    • Other provisions
  • Part III. Awards of compensation
  • Part IV (E+W+S+N.I.). Supplementary and general
  • Version 01/10/2010
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  • Version 01/10/1998
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  • Version 08/04/1998

Introductory Text

Employment Rights (Dispute Resolution) Act 1998

1998 CHAPTER 8

An Act to rename industrial tribunals and amend the law relating to those tribunals; to amend the law relating to dismissal procedures agreements and other alternative methods of resolving disputes about employment rights; to provide for the adjustment of awards of compensation for unfair dismissal in cases where no use is made of internal procedures for appealing against dismissal; to make provision about cases involving both unfair dismissal and disability discrimination; and for connected purposes.

[8th April 1998]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part I (E+W+S+N.I.)
Employment tribunals



Renaming of tribunals (E+W+S+N.I.)


1 Industrial tribunals to be known as employment tribunals. (E+W+S+N.I.)

(1) Industrial tribunals are renamed employment tribunals.

(2) Accordingly, the Industrial Tribunals Act 1996 may be cited as the M1 Employment Tribunals Act 1996; and (wherever they occur in any enactment) —

(a) for the words “industrial tribunal” substitute “ employment tribunal ”,
(b) for the words “industrial tribunals” substitute “ employment tribunals ”,
(c) for the words “the Industrial Tribunals Act 1996” substitute “ the Employment Tribunals Act 1996 ”,
(d) for the words “President of the Industrial Tribunals (England and Wales) ” substitute “ President of the Employment Tribunals (England and Wales) ”, and
(e) for the words “President of the Industrial Tribunals (Scotland) ” substitute “ President of the Employment Tribunals (Scotland) ”.
Annotations:

Extent Information

E1 For extent of s. 1(2), see s. 16(1)(3)

Marginal Citations

M1 1996 c. 17.


Hearings etc.


2 Determinations without a hearing or full hearing.

In section 7 of the M2 Employment Tribunals Act 1996 (which authorises the making of employment tribunal procedure regulations) , after subsection (3) insert—

“(3A) Employment tribunal procedure regulations may authorise the determination of proceedings without any hearing (and in private) where the parties have given their written consent (whether or not they have subsequently withdrawn it).
(3B) Employment tribunal procedure regulations may authorise the determination of proceedings without hearing anyone other than the person or persons by whom the proceedings are brought (or his or their representatives) where—
(a) the person (or, where more than one, each of the persons) against whom the proceedings are brought has done nothing to contest the case, or
(b) it appears from the application made by the person (or, where more than one, each of the persons) bringing the proceedings that he is not (or they are not) seeking any relief which an employment tribunal has power to give or that he is not (or they are not) entitled to any such relief.
(3C) Employment tribunal procedure regulations may authorise the determination of proceedings without hearing anyone other than the person or persons by whom, and the person or persons against whom, the proceedings are brought (or his or their representatives) where—
(a) an employment tribunal is on undisputed facts bound by the decision of a court in another case to dismiss the case of the person or persons by whom, or of the person or persons against whom, the proceedings are brought, or
(b) the proceedings relate only to a preliminary issue which may be heard and determined in accordance with regulations under section 9(4).”
Annotations:

Marginal Citations

M2 1996 c. 17.


3 Hearings etc. by chairman alone.

(1) In section 4 of the Employment Tribunals Act 1996 (which makes provision about the composition of an employment tribunal) , subsection (3) (which specifies the tribunal proceedings which are to be heard by the chairman alone unless he decides otherwise) is amended in accordance with subsections (2) to (5).

(2) In paragraph (a) (which specifies proceedings under the M3 Trade Union and Labour Relations (Consolidation) Act 1992) —

(a) after “proceedings” insert “ on a complaint under section 68A or 192 of the Trade Union and Labour Relations (Consolidation) Act 1992 or ”, and
(b) for “the M4 Trade Union and Labour Relations (Consolidation) Act 1992” substitute “ that Act ”.
(3) In paragraph (c) (which specifies proceedings under the M5 Employment Rights Act 1996) —

(a) after “proceedings” insert “ on a reference under section 11, 163 or 170 of the Employment Rights Act 1996, ”,
(b) after “section 23” insert “ , 34 ”,
(c) for “the Employment Rights Act 1996 or” substitute “ that Act, on a complaint under section 70(1) of that Act relating to section 64 of that Act, ”, and
(d) after “that” insert “ Act or for an appointment under section 206(4) of that ”.
(4) After that paragraph insert—

“(ca) proceedings on a complaint under regulation 11(5) of the M6 Transfer of Undertakings (Protection of Employment) Regulations 1981,”.
(5) Omitparagraph (f) (which specifies proceedings in which the person bringing the proceedings has given written notice withdrawing the case) , apart from the word “and”.

(6) After subsection (6) of that section (which makes provision for employment tribunal procedure regulations to provide that any act required or authorised by the regulations to be done by a tribunal may be done by the chairman alone) insert—

“(6A) Subsection (6) in particular enables employment tribunal procedure regulations to provide that—
(a) the determination of proceedings in accordance with regulations under section 7(3A) , (3B) or (3C) (a) ,
(b) the carrying-out of pre-hearing reviews in accordance with regulations under subsection (1) of section 9 (including the exercise of powers in connection with such reviews in accordance with regulations under paragraph (b) of that subsection) , or
(c) the hearing and determination of a preliminary issue in accordance with regulations under section 9(4) (where it involves hearing witnesses other than the parties or their representatives as well as where, in accordance with regulations under section 7(3C) (b) , it does not) ,
may be done by the person mentioned in subsection (1) (a) alone.”
Annotations:

Marginal Citations

M3 1992 c. 52.

M4 1992 c. 52.

M5 1996 c. 18.

M6 S.I. 1981/1794.


4 Hearings by chairman and one other member. (PROSPECTIVE)

In subsection (1) of section 4 of the M7 Employment Tribunals Act 1996 (which provides that, subject to the following provisions of that section, employment tribunal proceedings are to be heard by the chairman and either two other members or, with the consent of the parties, one other member) , for paragraph (b) substitute—

“(b) two other members selected as the other members in accordance with regulations so made or, with appropriate consent, one other member selected as the other member in accordance with regulations so made;
and in paragraph (b) “ appropriate consent ” means either consent given at the beginning of the hearing by such of the parties as are then present in person or represented, or consent given by each of the parties. ”
Annotations:

Marginal Citations

M7 1996 c. 17.


Other provisions


5 Legal officers.

After subsection (6A) of section 4 of the M8 Employment Tribunals Act 1996 (which is inserted by section 3(6) of this Act) insert—

“(6B) Employment tribunal procedure regulations may (subject to subsection (6C) ) also provide that any act which—
(a) by virtue of subsection (6) may be done by the person mentioned in subsection (1) (a) alone, and
(b) is of a description specified by the regulations for the purposes of this subsection,
may be done by a person appointed as a legal officer in accordance with regulations under section 1(1) ; and any act so done shall be treated as done by an employment tribunal.
(6C) But regulations under subsection (6B) may not specify—
(a) the determination of any proceedings, other than proceedings in which the parties have agreed the terms of the determination or in which the person bringing the proceedings has given notice of the withdrawal of the case, or
(b) the carrying-out of pre-hearing reviews in accordance with regulations under section 9(1).”
Annotations:

Marginal Citations

M8 1996 c. 17.


6 Jurisdiction in cases about political fund contributions.

For section 87 of the M9 Trade Union and Labour Relations (Consolidation) Act 1992 (which provides that a person who alleges that his employer has failed to comply with section 86 of that Act by wrongly deducting a political fund contribution or refusing to deduct union dues may make an application to a county court or sheriff court) substitute—

“87 Complaint in respect of employer’s failure.
(1) A person who claims his employer has failed to comply with section 86 in deducting or refusing to deduct any amount from emoluments payable to him may present a complaint to an employment tribunal.
(2) A tribunal shall not consider a complaint under subsection (1) unless it is presented—
(a) within the period of three months beginning with the date of the payment of the emoluments or (if the complaint relates to more than one payment) the last of the payments, or
(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that period, within such further period as the tribunal considers reasonable.
(3) Where on a complaint under subsection (1) arising out of subsection (3) (refusal to deduct union dues) of section 86 the question arises whether the employer’s refusal to deduct an amount was attributable to the giving of the certificate or was otherwise connected with the duty imposed by subsection (1) of that section, it is for the employer to satisfy the tribunal that it was not.
(4) Where a tribunal finds that a complaint under subsection (1) is well-founded—
(a) it shall make a declaration to that effect and, where the complaint arises out of subsection (1) of section 86, order the employer to pay to the complainant the amount deducted in contravention of that subsection less any part of that amount already paid to him by the employer, and
(b) it may, if it considers it appropriate to do so in order to prevent a repetition of the failure, make an order requiring the employer to take, within a specified time, the steps specified in the order in relation to emoluments payable by him to the complainant.
(5) A person who claims his employer has failed to comply with an order made under subsection (4) (b) on a complaint presented by him may present a further complaint to an employment tribunal; but only one complaint may be presented under this subsection in relation to any order.
(6) A tribunal shall not consider a complaint under subsection (5) unless it is presented—
(a) after the end of the period of four weeks beginning with the date of the order, but
(b) before the end of the period of six months beginning with that date.
(7) Where on a complaint under subsection (5) a tribunal finds that an employer has, without reasonable excuse, failed to comply with an order made under subsection (4) (b) , it shall order the employer to pay to the complainant an amount equal to two weeks’ pay.
(8) Chapter II of Part XIV of the M10 Employment Rights Act 1996 (calculation of a week’s pay) applies for the purposes of subsection (7) with the substitution for section 225 of the following—
For the purposes of this Chapter in its application to subsection (7) of section 87 of the M11 Trade Union and Labour Relations (Consolidation) Act 1992, the calculation date is the date of the payment, or (if more than one) the last of the payments, to which the complaint related.”
Annotations:

Marginal Citations

M9 1992 c. 52.

M10 1996 c. 18.

M11 1992 c. 52.


Part II
Other methods of dispute resolution



Arbitration


7 ACAS arbitration scheme.

After section 212 of the M12 Trade Union and Labour Relations (Consolidation) Act 1992 insert—

“212A Arbitration scheme for unfair dismissal cases etc.
(1) ACAS may prepare a scheme providing for arbitration in the case of disputes involving proceedings, or claims which could be the subject of proceedings, before an employment tribunal arising out of a contravention or alleged contravention of—
(a) Part X of the M13 Employment Rights Act 1996 (unfair dismissal) , or
(b) any enactment specified in an order made by the Secretary of State.
(2) When ACAS has prepared such a scheme it shall submit a draft of the scheme to the Secretary of State who, if he approves it, shall make an order—
(a) setting out the scheme, and
(b) making provision for it to come into effect.
(3) ACAS may from time to time prepare a revised version of such a scheme and, when it has done so, shall submit a draft of the revised scheme to the Secretary of State who, if he approves it, shall make an order—
(a) setting out the revised scheme, and
(b) making provision for it to come into effect.
(4) ACAS may take any steps appropriate for promoting awareness of a scheme prepared under this section.
(5) Where the parties to any dispute within subsection (1) agree in writing to submit the dispute to arbitration in accordance with a scheme having effect by virtue of an order under this section, ACAS shall refer the dispute to the arbitration of a person appointed by ACAS for the purpose (not being an officer or employee of ACAS).
(6) Nothing in the M14 Arbitration Act 1996 shall apply to an arbitration conducted in accordance with a scheme having effect by virtue of an order under this section except to the extent that the order provides for any provision of Part I of that Act so to apply; and the order may provide for any such provision so to apply subject to modifications.
(7) A scheme set out in an order under this section may, in relation to an arbitration conducted in accordance with the law of Scotland, make provision—
(a) that a reference on a preliminary point may be made, or
(b) conferring a right of appeal which shall lie,
to the relevant court on such grounds and in respect of such matters as may be specified in the scheme; and in this subsection “ relevant court ” means such court, being the Court of Session or the Employment Appeal Tribunal, as may be specified in the scheme, and a different court may be specified as regards different grounds or matters.
(8) Where a scheme set out in an order under this section includes provision for the making of re-employment orders in arbitrations conducted in accordance with the scheme, the order setting out the scheme may require employment tribunals to enforce such orders—
(a) in accordance with section 117 of the M15 Employment Rights Act 1996 (enforcement by award of compensation) , or
(b) in accordance with that section as modified by the order.
For this purpose “ re-employment orders ” means orders requiring that persons found to have been unfairly dismissed be reinstated, re-engaged or otherwise re-employed.
(9) An order under this section setting out a scheme may provide that, in the case of disputes within subsection (1) (a) , such part of an award made in accordance with the scheme as is specified by the order shall be treated as a basic award of compensation for unfair dismissal for the purposes of section 184(1) (d) of the M16 Employment Rights Act 1996 (which specifies such an award as a debt which the Secretary of State must satisfy if the employer has become insolvent).
(10) An order under this section shall be made by statutory instrument.
(11) No order shall be made under subsection (1) (b) unless a draft of the statutory instrument containing it has been laid before Parliament and approved by a resolution of each House.
(12) A statutory instrument containing an order under this section (other than one of which a draft has been approved by resolution of each House of Parliament) shall be subject to annulment in pursuance of a resolution of either House of Parliament.”
Annotations:

Marginal Citations

M12 1992 c. 52.

M13 1996 c. 18.

M14 1996 c. 23.

M15 1996 c. 18.

M16 1996 c. 18.


8 Effect of arbitration agreements.

F1 (1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In section 288 of the Trade Union and Labour Relations (Consolidation) Act 1992 (subsection (1) of which prohibits contracting out of the provisions of that Act, but subject to exceptions specified in subsections (2) and (2A) ) , after subsection (5) insert—

“(6) An agreement under which the parties agree to submit a dispute to arbitration—
(a) shall be regarded for the purposes of subsections (2) and (2A) as being an agreement to refrain from instituting or continuing proceedings if—
(i) the dispute is covered by a scheme having effect by virtue of an order under section 212A, and
(ii) the agreement is to submit it to arbitration in accordance with the scheme, but
(b) shall be regarded for those purposes as neither being nor including such an agreement in any other case.”
F2 (4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In section 203 of the M17 Employment Rights Act 1996 (subsection (1) of which prohibits contracting out of the provisions of that Act, but subject to exceptions specified in subsection (2) ) , after subsection (4) insert—

“(5) An agreement under which the parties agree to submit a dispute to arbitration—
(a) shall be regarded for the purposes of subsection (2) (e) and (f) as being an agreement to refrain from instituting or continuing proceedings if—
(i) the dispute is covered by a scheme having effect by virtue of an order under section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992, and
(ii) the agreement is to submit it to arbitration in accordance with the scheme, but
(b) shall be regarded as neither being nor including such an agreement in any other case.”
Annotations:

Amendments (Textual)

F1 S. 8(1)(2) repealed (1.10.2010) by 2010 c. 15, Sch. 27 Pt. 1 (as substituted by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 2) (see S.I. 2010/2317, art. 2)

F2 S. 8(4) repealed (1.10.2010) by 2010 c. 15, Sch. 27 Pt. 1 (as substituted by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 2) (see S.I. 2010/2317, art. 2)

Marginal Citations

M17 1996 c. 18.