Employment and
Discrimination Tribunal (Procedure) (Jersey) Order 2016
Part 1
INTRODUCTORY AND GENERAL
1 Interpretation
(1) In this
Order –
“Chairman” means a member of the Tribunal described in
Regulation 2(1)(a) of the Regulations;
“claim” means any proceedings before the Tribunal making
a complaint;
“complainant” means the person bringing the claim;
“complaint” means anything that is referred to as a
claim, complaint, reference, application or appeal in any enactment that
confers jurisdiction on the Tribunal;
“Deputy Chairman” means a member of the Tribunal
described in Regulation 2(1)(b) of the Regulations;
“electronic communication” has the meaning given to it
by Article 1(1) of the Electronic Communications
(Jersey) Law 2000;
“full tribunal” means a Tribunal constituted in
accordance with Regulation 9(2) of the Regulations;
“member” means the Chairman, a Deputy Chairman or a Lay
member of the Tribunal;
“party” means party to the proceedings to be considered
by the Tribunal;
“present” means deliver (by any means permitted under Article 42)
to the tribunal office;
“Register” means the register of judgments and written
reasons kept in accordance with Article 41;
“Regulations” means the Employment and Discrimination
Tribunal (Jersey) Regulations 2014;
“respondent” means the person or persons against whom
the claim is made;
“response” means a response to a claim;
“single tribunal member” means the Chairman or a Deputy
Chairman sitting alone;
“tribunal office” means the office established for the
carrying out of administrative functions in support of the Tribunal.
(2) A reference in this
Order to the Tribunal applies to both a full tribunal and to sittings before a
single tribunal member.
(3) A decision of the
Tribunal is either –
(a) a
“case management order”, being a direction or other decision of any
kind in relation to the conduct of proceedings, not including the determination
of any issue which would be the subject of a judgment; or
(b) a
“judgment”, being an order or other decision, made at any stage of
the proceedings (but not including a decision under Article 6 or 10), that
finally determines –
(i) a claim, or part
of a claim, as regards liability or remedy, or
(ii) any
issue that is capable of finally disposing of any claim, or part of a claim,
even if it does not necessarily do so (for example, an issue as to whether or
not a claim should be struck out or a jurisdictional issue).
2 Overriding
objective
(1) The overriding
objective of this Order is to enable the Tribunal to deal with cases fairly and
justly, that is to say so far as practicable –
(a) ensuring
that the parties are on an equal footing;
(b) dealing
with cases in ways that are proportionate to the complexity and importance of
the issues;
(c) avoiding
unnecessary formality and seeking flexibility in the proceedings;
(d) avoiding
delay, so far as compatible with proper consideration of the issues; and
(e) saving
expense.
(2) The Tribunal must try
to give effect to the overriding objective in interpreting, or exercising any
power given to it by this Order.
(3) The parties and their
representatives must assist the Tribunal to further the overriding objective
and in particular must co-operate generally with each other and with the
Tribunal.
3 Time
(1) Unless otherwise
specified by the Tribunal, an act required by this Order or by a practice
direction or order of the Tribunal, to be done on or by a particular day, may
be done at any time before midnight on that day and if there is an issue as to
whether the act has been done by that time, the onus is on the party claiming
to have done it to prove compliance.
(2) If the time specified
by this Order, a practice direction or an order for doing any act ends on a day
other than a working day, the act is done in time if it is done on the next
working day.
(3) Subject to the Employment (Jersey)
Law 2003, where any act is required to be, or may be, done –
(a) within
a certain number of days of or from an event; or
(b) not
less than a certain number of days before or after an event,
the date of that event is not included in the calculation.
(4) Where the Tribunal
imposes a time limit for doing any act, the last date for compliance must,
wherever practicable, be expressed as a calendar date.
(5) Where time is specified
by reference to the date when a document is sent to a person by the Tribunal,
the date when the document was sent, unless the contrary is proved, is regarded
as the date endorsed on the document as the date of sending or, if there is no
such endorsement, the date shown on the letter accompanying the document.
(6) The Tribunal may, on
its own initiative or on the application of a party, extend or shorten any time
limit specified in this Order or in any decision, whether or not (in the case
of an extension) it has expired.
(7) In this Article
“working day” means any day except a Saturday or Sunday, Christmas
Day, Good Friday or any day appointed as a public holiday or bank holiday under
Article 2 of the Public Holidays and Bank
Holidays (Jersey) Law 1951.
Part 2
STARTING A CLAIM
4 Presenting
the claim
(1) A claim is started by
presenting a completed claim form supplied by the tribunal office which must be
signed by all complainants and dated.
(2) The claim form must
include the name and address of every complainant and every respondent and a
brief summary of the facts giving rise to the claim.
5 Rejection
of claim
(1) The Secretary of the
Tribunal must reject a claim if –
(a) it deviates
from the form supplied by the tribunal office to an extent that materially
affects the substance or that is likely to mislead; or
(b) it
does not contain the name and address of every complainant and every
respondent.
(2) The Chairman or a
Deputy Chairman must reject a claim (or part of it) if he or she considers that
the claim (or part of it) is –
(a) one
which the Tribunal has no jurisdiction to consider; or
(b) in a
form that cannot sensibly be responded to or is otherwise an abuse of the
process.
(3) If the claim is
rejected, it must be returned to the complainant together with a notice of
rejection explaining the reasons for rejecting the claim (or part of it) and
explaining how to apply for a reconsideration of the rejection.
6 Reconsideration
of rejected claim
(1) A complainant whose
claim has been rejected (in whole or in part) under Article 5 may apply
for a reconsideration on the basis that the decision to reject was wrong or the
notified defect can be rectified.
(2) The application must be
in writing and presented to the tribunal office within 14 days of the date
that the notice of rejection was sent.
(3) The application must
explain why the decision is said to have been wrong or rectify the defect and
may, if the complainant so wishes, request a hearing.
(4) If the complainant does
not request a hearing, or the Chairman or a Deputy Chairman decides, on
considering the application, that the claim should be accepted in full, the
Chairman or Deputy Chairman must determine the application without a hearing;
otherwise the application is considered at a hearing attended only by the
complainant.
(5) If the Chairman or
Deputy Chairman decides that the original rejection was correct but that the
defect has been rectified, the claim is treated as presented on the date that
the defect was rectified.
(6) Where a claim (or part
of it) is rejected under Article 5(2) its reconsideration must be by a
person other than the person who originally rejected it.
Part 3
RESPONSE TO CLAIM
7 Notification
to respondents
Unless a claim is rejected, within 5 working days of the date of
receipt of the completed claim form the Secretary of the Tribunal must send a
copy of that form, together with a response form, to each respondent together
with a notice including information on –
(a) whether any part of the
claim has been rejected; and
(b) how to submit a
response, the time limit for doing so and what will happen if a response is not
received by the tribunal office within that time limit.
8 Response
(1) A response must be on a
form supplied by the tribunal office, which must be signed by the respondent
and dated and presented to the tribunal office within 21 days of the date
that the copy of the claim form was sent by the Tribunal.
(2) Subject to paragraph (3),
where there is more than one respondent or claim a separate response form must
be presented by each respondent.
(3) A response
form –
(a) may
include the response of more than one respondent if they are responding to a
single claim and either they do not resist the claim or they resist it on the
same grounds;
(b) may
include the response to more than one claim if the claims are based on the same
set of facts and either the respondent does not resist the claims or resists
all of them on the same grounds.
9 Rejection
of response
(1) The Secretary of the
Tribunal must reject a response if –
(a) it deviates
from the form supplied by the tribunal office to an extent that materially
affects the substance or that is likely to mislead;
(b) it
does not contain the respondent’s full name and address; or
(c) it is
received outside the time limit in Article 8 (or any extension of that
limit granted within the original limit).
(2) However, if an
application for extension has already been made under Article 11 or the
response includes or is accompanied by such an application, the response must
not be rejected pending the outcome of the application.
(3) The response must be
returned to the respondent with a notice of rejection explaining why it has
been rejected and the steps needed to be taken by the respondent, including any
need to apply for an extension of time, and how to apply for a reconsideration
of the rejection.
10 Reconsideration
of rejected response
(1) A respondent whose
response has been rejected under Article 9(1) may apply for a
reconsideration on the basis that the decision to reject was wrong or, in the
case of a rejection under Article 9(1)(a) or (b), can be rectified.
(2) The application must be
in writing and presented to the tribunal office within 14 days of the date
on which the notice of rejection was sent.
(3) The application must
explain why the decision is said to have been wrong or rectify the defect and
may, if the respondent so wishes, request a hearing.
(4) If the respondent does
not request a hearing, or the Chairman or a Deputy Chairman decides, on considering
the application, that the response is accepted in full, the Chairman or Deputy
Chairman must determine the application without a hearing; otherwise the
application is considered at a hearing attended only by the respondent.
(5) If the Chairman or
Deputy Chairman decides that the original rejection was correct but that the
defect has been rectified, the response is treated as presented on the date
that the defect was rectified (but the Chairman or Deputy Chairman may extend
time under Article 3(6)).
(6) Where a response is
rejected under Article 9(1)(c) its reconsideration must be by the Chairman
or a Deputy Chairman.
11 Applications for
extension of time for presenting response
(1) An application for an
extension of time for presenting a response must be presented in writing within
the 21 days allowed for the response and copied to the complainant,
setting out the reason why the extension is sought.
(2) The complainant may
within 7 days of receipt of the application give reasons in writing
explaining why the application is opposed.
(3) The Chairman or a
Deputy Chairman may determine the application without a hearing and may grant
an extension of such period as the Tribunal considers appropriate if he or she
considers it just and equitable to do so.
12 Effect of
non-presentation or rejection of response, or case not contested
(1) This Article applies if –
(a) no
response has been presented on the expiry of the time limit in Article 8;
(b) any
response received has been rejected and no application for a reconsideration is
outstanding; or
(c) the
respondent has stated that no part of the claim is contested.
(2) The Chairman or a
Deputy Chairman must decide whether on the available material (which may
include further information which the parties are required to provide), a
determination can properly be made of the claim, or part of it and if so the
Chairman or Deputy Chairman must issue a judgment accordingly; otherwise, a
hearing must be fixed before a single tribunal member.
(3) The respondent is
entitled to notice of any hearings and decisions of the Tribunal but, unless
and until an extension of time is granted, is entitled to participate in any
hearing only to the extent permitted by the Chairman or Deputy Chairman.
13 Notification of
acceptance
Where the Tribunal accepts the response it must send a copy of it to
all other parties.
Part 4
Counterclaim
14 Making a
counterclaim
(1) Any counterclaim must
be made as part of the response, presented in accordance with Article 8.
(2) A counterclaim may be
rejected on the same basis as a complainant’s claim may be rejected under
Article 5(2), in which case Article 6 applies to the rejected
counterclaim as if it were a claim presented under Article 4.
15 Notification of
counterclaim
When the Tribunal sends the response to the other parties in
accordance with Article 13 it must –
(a) notify the complainant
that the response includes a counterclaim; and
(b) include information on
how to submit a response to the counterclaim, the time limit for doing so, and
what will happen if a response is not received by the Tribunal within that time
limit.
16 Responding to an
employer’s counterclaim
A complainant’s response to a counterclaim must be presented
to the tribunal office within 21 days of the date that the response was
sent to the complainant or Articles 11 and 12 shall apply to the
presentation of that response as if it were a response under Article 8.
Part 5
matters preliminary to hearing
17 Initial
consideration
(1) As soon as possible after
the acceptance of the response, the Chairman or a Deputy Chairman must consider
all of the documents held by the Tribunal in relation to the claim, to confirm
whether there are arguable complaints and defences within the jurisdiction of
the Tribunal (and for that purpose the Chairman or Deputy Chairman may order a
party to provide further information).
(2) Except in a case where
notice is given under Article 18 or 19, the Chairman or Deputy
Chairman conducting the initial hearing must make a case management order
(unless made already), which may deal with the listing of a preliminary or
final hearing, and may propose conciliation or mediation.
18 Dismissal of
claim (or part of claim)
(1) If the Chairman or a
Deputy Chairman considers –
(a) that
the Tribunal has no jurisdiction to consider the claim, or part of it, or;
(b) on
the application of the respondent, that the claim, or part of it, has no
reasonable prospect of success,
the Tribunal must send a notice to the parties in accordance with paragraph (2).
(2) The notice must –
(a) set
out the Chairman or Deputy Chairman’s view and the reasons for it; and
(b) order
the claim, or the part in question, to be dismissed on such date as is
specified in the notice unless before that date the complainant has presented
written representations to the Tribunal explaining why the claim (or part)
should not be dismissed.
(3) If no such
representations are received, the claim must be dismissed from the date
specified without further order (although the Tribunal must write to the
parties to confirm what has occurred).
(4) If representations are
received within the specified time they must be considered by the Chairman or
Deputy Chairman, who must either permit the claim (or part) to proceed or fix a
hearing for the purpose of deciding whether it should be permitted to do so.
(5) The respondent may, but
need not, attend and participate in the hearing.
(6) If any part of the
claim is permitted to proceed the Chairman or Deputy Chairman must make a case
management order.
(7) This Article applies to
a counterclaim as it does a claim.
19 Dismissal of
response (or part of response)
(1) If the Chairman or a
Deputy Chairman, on the application of the complainant, considers that the
response, or part of it, has no reasonable prospect of success the Tribunal
must send a notice to the parties –
(a) setting
out the Chairman or Deputy Chairman’s view and the reasons for it;
(b) ordering
that the response, or the part in question, is dismissed on such date as is
specified in the notice unless before that date the respondent has presented
written representations to the Tribunal explaining why the response (or part)
should not be dismissed; and
(c) specifying
the consequences of the dismissal of the response, in accordance with paragraph (6).
(2) If no such
representations are received, the response must be dismissed from the date
specified without further order (although the Tribunal must write to the
parties to confirm what has occurred).
(3) If representations are
received within the specified time they must be considered by the Chairman or
Deputy Chairman who must either permit the response (or part) to stand or fix a
hearing for the purpose of deciding whether it should be permitted to do so.
(4) The complainant may,
but need not, attend and participate in the hearing.
(5) If any part of the
response is permitted to stand the Chairman or Deputy Chairman must make a case
management order.
(6) Where a response is
dismissed, the effect is as if no response had been presented, as set out in Article 12.
(7) This Article applies to
a response to a counterclaim as it does a response to a claim.
20 Case management
orders
(1) The Chairman or a
Deputy Chairman may at any stage of the proceedings, on his or her own
initiative or on the application of any party, convene a meeting and at the
meeting make such directions as to the management of any case (a “case
management order”) as he or she thinks fit.
(2) A case management order
may vary, suspend or set aside an earlier case management order where that is
necessary in the interests of justice, and in particular where a party affected
by the earlier order did not have a reasonable opportunity to make
representations before it was made.
21 Applications for
case management orders
(1) An application by a
party for a particular case management order may be made either at a hearing or
presented in writing to the Tribunal.
(2) Where a party makes the
application in writing, he or she must notify the other parties that any
objections to the application should be sent to the Tribunal as soon as
possible.
(3) The Chairman or a
Deputy Chairman may deal with the application in writing or order that it be
dealt with at a preliminary or final hearing.
22 Addition,
substitution and removal of parties
The Tribunal may on its own initiative, or on the application of a
party or any other person wishing to become a party –
(a) add any person as a
party, by way of substitution or otherwise, if it appears that there are issues
between that person and any of the existing parties falling within the
jurisdiction of the Tribunal which it is in the interests of justice to have
determined in the proceedings; and
(b) remove any party
apparently wrongly included.
23 Lead cases
(1) Where a Tribunal
considers that 2 or more claims give rise to common or related issues of fact
or law, the Tribunal may make an order specifying one or more of those claims
as a lead case and staying the other claims (“the related cases”).
(2) When the Tribunal makes
a decision in respect of the common or related issues it must send a copy of
that decision to each party in each of the related cases and, subject to paragraph (3),
that decision is binding on each of those parties.
(3) Within 21 days of
the date on which the Tribunal sent a copy of the decision to a party under paragraph (2),
that party may apply in writing for an order that the decision does not apply
to, and is not binding on the parties to, a particular related case.
(4) If a lead case is
withdrawn before the Tribunal makes a decision in respect of the common or
related issues, it must make an order as to –
(a) whether
another claim is to be specified as a lead case; and
(b) whether
any order affecting the related cases should be set aside or varied.
24 Striking out
(1) At any stage of the
proceedings, either on its own initiative or on the application of a party, the
Tribunal may strike out all or part of a claim or response on any of the
following grounds –
(a) that
it is scandalous or vexatious or has no reasonable prospect of success;
(b) that
the manner in which the proceedings have been conducted by or on behalf of the
complainant or the respondent (as the case may be) has been scandalous,
unreasonable or vexatious;
(c) for
non-compliance with any provision of this Order or with an order of the
Tribunal;
(d) that
it has not been actively pursued;
(e) that
the Tribunal considers that it is no longer possible to have a fair hearing in
respect of the claim or response (or the part to be struck out).
(2) A claim or response (or
part of it) 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.
(3) Where a response is
struck out, the effect shall be as if no response had been presented, as set
out in Article 12.
25 Unless orders
(1) An order may specify
that if it is not complied with by the date specified the claim or response, or
part of it, must be dismissed without further order and if such a dismissal occurs
the Tribunal must give written notice of the fact to the parties.
(2) A party whose claim or
response has been dismissed, in whole or in part, as a result of such an order
may apply to the Tribunal in writing, within 14 days of the date that the
notice was sent, to have the order set aside on the basis that it is in the
interests of justice to do so and unless the application includes a request for
a hearing, the Tribunal may determine it on the basis of written
representations.
(3) Where a response is dismissed
under this Article, the effect shall be as if no response had been presented,
as set out in Article 12.
Part 6
HEARINGs
26 General
(1) The Tribunal may
regulate its own procedure.
(2) However, the Tribunal
must conduct the hearing in a manner that it considers fair, having regard to
the principles contained in the overriding objective set out in Article 2
and nothing in this Part limits this paragraph.
(3) The Tribunal must as
far as practicable seek to avoid undue formality and may itself question the
parties or any witnesses so far as appropriate in order to clarify the issues
or elicit the evidence.
(4) The Tribunal is not
bound by any rule of law relating to the admissibility of evidence in
proceedings before the courts.
27 Written representations
The Tribunal must consider any written representations from a party,
including a party who does not propose to attend the hearing, if they are
delivered to the Tribunal and to all other parties not less than 7 days
before the hearing.
28 Witnesses
(1) Witnesses may be called
to a hearing only with the permission of the Chairman or Deputy Chairman
presiding and all parties must be made aware of the identity of every witness
called.
(2) The evidence of
witnesses is to be taken, whether by means of admitting a witness statement or
orally, as the Chairman or Deputy Chairman thinks fit.
(3) Witnesses must give
their oral evidence on oath or affirmation.
(4) The Chairman or Deputy
Chairman may exclude from the hearing any person who is to appear as a witness
in the proceedings until such time as that person gives evidence if it
considers it in the interests of justice to do so.
29 Timetabling
The Tribunal may impose limits on the time that a party may take in
presenting evidence, questioning witnesses or making submissions, and may
prevent the party from proceeding beyond any time so allotted.
30 Hearings by
electronic communication
A hearing may be conducted, in whole or in part, by use of
electronic communication (including by telephone) provided that –
(a) the Tribunal considers
that it would be just and equitable to do so; and
(b) the parties and members
of the public attending the hearing are able to hear what the Tribunal hears
and see any witness seen by the Tribunal.
31 Non-attendance
(1) If a party fails to
attend or to be represented at a hearing, the Tribunal may dismiss the claim or
proceed with the hearing in the absence of that party.
(2) However, before doing
so, it must consider any information available to it, after any enquiries that
may be practicable, about the reasons for the party’s absence.
32 Privacy and
restrictions on disclosure
(1) The Tribunal may at any
stage of the proceedings, on its own initiative or on application, make an
order with a view to preventing or restricting the public disclosure of any
aspect of those proceedings so far as it considers necessary in the interests
of justice or in order to protect the Convention rights of any person or where
the evidence of any person is, in the opinion of the Tribunal likely to consist
of –
(a) information
that the person could not disclose without contravening a prohibition imposed
by or by virtue of any enactment;
(b) information
that has been communicated to the person in confidence or which the person has
otherwise obtained in consequence of the confidence reposed in him or her by
another person;
(c) information
the disclosure of which would cause substantial injury to any undertaking of
the person’s or in which the person works or, if he or she is a States’
employee (within the meaning of Article 2 of the Employment of States of
Jersey Employees (Jersey) Law 2005), the interests of Jersey;
(d) information
relating to children below a certain age; or
(e) information
of a sexual nature.
(2) In considering whether
to make an order under this Article, the Tribunal must give full weight to the
principle of open justice and to the Convention right of freedom of expression.
(3) An order under this Article
may include –
(a) an
order that a hearing that would otherwise be in public be conducted, in whole
or in part, in private;
(b) an
order that the identities of specified parties, witnesses or other persons
referred to in the proceedings should not be disclosed to the public, by the
use of anonymized details or otherwise, whether in the course of any hearing or
in its listing or in any documents entered on the Register or otherwise forming
part of the public record; or
(c) an
order for measures preventing witnesses at a public hearing being identifiable
by members of the public.
(4) Any party, or other
person with a legitimate interest, who has not had a reasonable opportunity to
make representations before an order under this Article is made may apply to
the Tribunal in writing for the order to be revoked or discharged, either on
the basis of written representations or, if requested, at a hearing.
(5) In this Article
“Convention rights” has the meaning given to it in Article 1(1)
of the Human Rights (Jersey)
Law 2000.
33 Withdrawal of
claim
(1) Where a complainant
informs the Tribunal, either in writing or in the course of a hearing, that a
claim, or part of it, is withdrawn, the claim, or part, comes to an end and the
Tribunal must formally record the withdrawal.
(2) Where a claim, or part
of it, has been withdrawn, the claimant may not commence a further claim
raising the same or substantially the same complaint unless at the time of
withdrawal the complainant reserved the right to bring a further claim and the
Tribunal is satisfied that there would be legitimate reason for doing so.
34 Interim hearings
(1) An interim hearing is a
hearing at which the Tribunal may do one or more of the following –
(a) conduct
a preliminary consideration of the claim with the parties and make a case
management order (including an order relating to the conduct of the final
hearing);
(b) determine
any preliminary issue;
(c) consider
whether a claim or response, or any part, should be struck out under Article 24;
(d) explore
the possibility of settlement or alternative dispute resolution.
(2) There may be more than
one interim hearing in any case.
(3) An interim hearing may
be directed by the Tribunal on its own initiative following its initial
consideration (under Article 17) or at any time thereafter or as the
result of an application by a party.
(4) The Tribunal must give
the parties reasonable notice of the date of the hearing and in the case of a
hearing involving any preliminary issues at least 14 days’ notice
must be given.
(5) However, the Chairman
or a Deputy Chairman presiding may override the notice requirements in paragraph (4)
if it is in the interests of justice to do so.
(6) The notice must specify
the preliminary issues that are to be, or may be, decided at the hearing.
(7) Interim hearings must
be conducted in private, except that where the hearing involves a determination
under paragraph (1)(b) or (c), any part of the hearing relating to such a
determination must be in public (subject to Article 32) and the Tribunal
may direct that the entirety of the hearing be in public.
(8) In this Article
“preliminary issue” means, as regards any complaint, any
substantive issue which may determine liability (for example, an issue as to
jurisdiction or as to whether an employee was dismissed).
35 Final hearings
(1) A final hearing is a
hearing at which the Tribunal determines the claim or such parts as remain
outstanding following the initial consideration (under Article 17) or any
interim hearing.
(2) The Tribunal must give
the parties not less than 14 days’ notice of the date of a final
hearing.
(3) However, the Chairman
or a Deputy Chairman presiding may override the notice requirements in paragraph (2)
if it is in the interests of justice to do so.
(4) Except as required by Article 32
a final hearing must be in public.
36 Conversion from
interim hearing to final hearing and vice versa
When conducting an interim hearing the Tribunal may order that it be
treated as a final hearing, or vice versa, provided that –
(a) the Tribunal is
properly constituted for the purpose; and
(b) it is satisfied that
neither party is materially prejudiced by the change.
Part 7
judgments
37 Orders
(1) An order may be
announced to the parties at the hearing or reserved to a later date.
(2) Orders must be recorded
in writing by the Chairman or Deputy Chairman presiding and a copy sent to each
party.
(3) Any party may request
the reasons for an order at the hearing.
(4) The reasons for making
an order may be given verbally at the hearing or reserved and delivered
verbally or in writing at a later date.
(5) The reasons given for
making any order must be proportionate to the significance of the issue and may
be very short.
38 Decisions and
reasons
(1) The Tribunal’s
decision regarding the complaints made and the reasons for that decision may be
delivered verbally at the end of the hearing or reserved and delivered verbally
or in writing at a later date.
(2) Alternatively just the
decision may be delivered verbally at the end of the hearing and the reasons
given in writing at a later date.
(3) If the reasons are
delivered verbally they must still be recorded in writing at a later date.
(4) The decision must be
recorded in writing and a copy sent to each of the parties.
(5) The reasons given for
any decision must be proportionate to the significance of the issue.
39 Awards of
compensation in discrimination cases
The matters that the Tribunal may take into consideration in
determining amounts of compensation for hurt and distress under Article 42(1)(b)
of the Discrimination (Jersey)
Law 2013 when a complaint of discrimination has been found by the Tribunal
to be well-founded include –
(a) the extent to which
there has been a campaign of discrimination or harassment;
(b) whether the
discrimination caused the person to lose his or her job;
(c) the seriousness of the
discrimination; or
(d) the length of time that
the discrimination continued.
40 Matters ancillary
to judgments
(1) If it is impossible or
not practicable for the written record or reasons to be signed by the Chairman or
Deputy Chairman presiding due to his or her death, incapacity or absence, they
must be signed –
(a) in
the case of a hearing by the full tribunal, by the other member or members;
(b) in
the case of a hearing by a single tribunal member, by another member qualified
to preside.
(2) If the parties agree in
writing or orally at a hearing upon the terms of any judgment the Tribunal may,
if it thinks fit, give a judgment expressed to be by consent.
(3) A judgment takes effect
from the day when it is given, or on such later date as specified by the
Tribunal.
(4) A party must comply
with a judgment for the payment of an amount of money within 14 days of
the date of the judgment, unless –
(a) the
judgment or any provision of this Order, specifies a different date for
compliance; or
(b) the
Tribunal has stayed the proceedings or judgment.
(5) Where the proceedings
were referred to the Tribunal by a court a copy of any judgment and of any
written reasons must be provided to that court.
(6) The Chairman or Deputy
Chairman may at any time correct any clerical mistake or other accidental slip
or omission in any judgment or other document produced by a Tribunal at which
he or she presided.
(7) If such a correction is
made –
(a) any
published version of the document must also be corrected; and
(b) a
copy of the corrected version, signed by the Chairman or Deputy Chairman, must
be sent to all the parties.
41 Register of
judgments
(1) Subject to Article 32
the Judicial Greffier must maintain a register, either electronically or otherwise,
of all Tribunal judgments.
(2) A judgment must be
maintained on the register for a minimum of 10 years from the date of its
delivery.
Part 8
DELIVERY OF DOCUMENTS
42 Delivery to the
tribunal office
Documents may be delivered to the tribunal office –
(a) by post;
(b) by direct delivery to
the tribunal office (including delivery by a courier or messenger service); or
(c) by electronic
communication.
43 Delivery to
parties
(1) Documents may be
delivered to a party (whether by the Tribunal or by another party) –
(a) by
post;
(b) by
direct delivery to that party’s address (including delivery by a courier
or messenger service);
(c) by
electronic communication; or
(d) by
being handed personally to –
(i) that party, if an
individual and if no representative has been named in the claim form or
response,
(ii) any
individual representative named in the claim form or response,
(iii) on
the occasion of a hearing, to any person identified by the party as
representing that party at that hearing.
(2) For the purposes of paragraph (1)(a)
to (c), the document must be delivered to the address given in the claim form
or response (which must be the address of the party’s representative, if
one is named) or to a different address as notified in writing by the party in
question.
(3) If a party has given
both a postal address and one or more electronic addresses, any of them may be
used unless the party has indicated in writing that a particular address should
or should not be used.
44 Date of delivery
Where a document has been delivered in accordance with Article 42
or 43, unless the contrary is proved it is taken to have been received by the
addressee –
(a) if sent by post, on the
day on which it would be delivered in the ordinary course of post;
(b) if sent by means of electronic
communication, on the day of transmission;
(c) if delivered directly
or personally, on the day of delivery.
45 Irregular service
The Tribunal may treat any document as delivered to a person,
despite any non-compliance with Article 43, if satisfied that the document
in question, or its substance, has in fact come to the attention of that
person.
46 Correspondence
with the Tribunal: copying to other parties
Unless the Tribunal orders otherwise in the interests of justice,
where a party sends a communication to the Tribunal (other than a request for
the Tribunal to issue a summons under Article 89(1)(a) of the Employment (Jersey)
Law 2003) it must send a copy to all other parties, and state that it has
done so (by use of “cc” or otherwise).
Part 9
MISCELLANEOUS
47 Alternative
dispute resolution
(1) The tribunal must
wherever practicable and appropriate encourage the use by the parties of the
services of JACS or a person qualified in conducting conciliation or mediation.
(2) Where proceedings
concern an enactment that provides for conciliation, the Tribunal must –
(a) send
a copy of the claim form and the response to a conciliation officer or other person
qualified in conducting conciliation or mediation as required by that enactment;
and
(b) inform
the parties that the services of such a person are available to them.
48 Transfer of
proceedings from a court
Where proceedings are referred to a Tribunal by a court, this Order
applies as if the proceedings had been presented by the complainant.
49 Citation
This Order may be cited as the Employment and Discrimination
Tribunal (Procedure) (Jersey) Order 2016.