2 Employment Tribunals (Constitution and
Rules of Procedure) Regulations 2004; Employment Tribunals (Constitution
and Rules of Procedure) (Amendment) Regulations 2004: defective
drafting
Employment Tribunals (Constitution and Rules of
Procedure) Regulations 2004 (S.I. 2004/1861); Employment
Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations
2004 (S.I. 2004/2351)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted.
2.2 Schedule 1 to S.I. 2004/1861 contains rules of
procedure for employment tribunals. Paragraph (1) of rule 30 requires
a tribunal or chairman to give reasons (either oral or written)
for any judgment and, if requested before or at the hearing at
which the order is made, any order. Paragraphs (2) and (3) provide
as follows:
(2) Reasons may be
given orally at the time of issuing the judgment or order or they
may be reserved to be given in writing at a later date. If reasons
are reserved, they shall be signed by the chairman and sent to
the parties by the Secretary.
(3) Written reasons shall only be provided -
(a) in relation to judgments if requested
by one of the parties within the time limit set out in paragraph
(5); or
(b) in relation to any judgment or order
if requested by the Employment Appeal Tribunal at any time.
2.3 There is an apparent conflict between paragraphs
(2) and (3) in a case where reasons are reserved (the former giving
a tribunal discretion to provide written reasons at a later date
than that on which it issues its judgment or order and the latter
precluding it from giving written reasons unless a request of
a kind referred to is made). The Committee therefore asked the
Department of Trade and Industry whether paragraph (3) was intended
to apply only where reasons are not reserved, and why this was
not made clear. In its first memorandum, printed in Appendix 2,
the Department confirms that this is the intention and adds that
this was not spelt out as it seems very unlikely that any request
would be made for written reasons if reasons were reserved. That
explanation, however, does not address the conflict. In the
Committee's view, the failure to clarify the intended application
of paragraph (3) constitutes defective drafting.
2.4 Regulation 2(9)(c) of S.I. 2004/2351 amends rule
30(3) by inserting "Subject to paragraph (1)," at the
beginning. In its second memorandum, the Department explains that
the purpose of making paragraph (3) subject to paragraph (1) was
to make clear that the obligation in paragraph (1) to provide
reasons is an overriding one and that the limitations in paragraph
(3) do not detract from that obligation. The Department acknowledges
that the amendment is opaque, and undertakes to amend the provision
at the next available opportunity. The Department's proposal to
amend paragraph (3) to read "Where oral reasons have been
provided, written reasons shall only be provided: ..." would
meet both the Department's concern and that of the Committee.
The Committee accordingly reports rule 30 in Schedule 1 to
S.I. 2004/1861 and regulation 2(9)(c) of S.I. 2004/2351 for defective
drafting, acknowledged by the Department.
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