UK Offence Report

Modification of rule 4 of Schedule 1

paragraph 1 of SCHEDULE 3 of The Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

Notice of such application shall be given to the parties and to the expert upon whose application the requirement was made. ; and

b for paragraphs (6) and (7), substitute—

6 Every document containing

a requirement imposed under paragraph (5) or (5A) shall state that, under section 7(4) of the 1996 Act, any person who without reasonable excuse fails to comply with the requirement shall be liable on summary conviction to

a fine, and the document shall state the amount of the current maximum fine.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
failing to comply with a notice or direction
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

te that, under section 7(4) of the 1996 Act, any person who without reasonable excuse fails to comply with the requirement shall be liable on summary conviction to a fine, and the document shall state the amount of the current maximum fine.

What would breach paragraph 1 of SCHEDULE 3?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where a person without reasonable excuse fails to comply with the requirement.
  2. Being served with a notice under the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 and doing nothing by the date it specifies.
  3. Doing part of what the notice requires, where it required all of it.
  4. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
Unlimited
Maximum prison (summary)
Not determined

'to a fine' with no stated maximum.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
23 March 2001
In force from
18 April 2001
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations re-enact the Employment Tribunals (Constitution and Procedure) (Scotland) Regulations 1993 (the “1993 Regulations”) with amendments. In addition to minor and drafting amendments, re-numbering and the updating of statutory and other references, these Regulations make the following changes of substance. Regulation 2 contains new provisions in paragraphs (6) to (10) setting out how time limits in the Regulations and in documents issued under them are to be calculated. Examples are given for interpretation of the general rules. Regulations 3 and 5 are amended to enable the President of the Employment Tribunals (Scotland) and the panel of tribunal chairmen to be persons legally qualified not only in Scotland but in England and Wales or Northern Ireland. Regulations 6 and 7 are new and provide for the selection of panels of tribunal chairmen and members to hear national security cases and for modifications of section 4 of the Employment Tribunals Act 1996 (the “1996 Act”) (composition of a tribunal) in such cases. Regulation 9 (composition of tribunals) is amended so that the tribunal is to be composed of a chairman and members taken from the specialist national security panels in cases involving national security. Regulation 10 is new and inserts an overriding objective into the rules of procedure. Regulation 14 contains a transitional provision stating that the new regulations apply in respect of all cases, irrespective of when they were commenced. Regulation 15 revokes the instruments listed in Schedule 7, namely the 1993 Regulations and the instruments which amended them. Schedule 1 contains the rules of procedure which apply to all employment tribunal proceedings in the absence of other provision. Rules 1 and 3 are amended to make it clear that more than one originating application or notice of appearance may be presented in a single document. Paragraphs (3) and (4) of rule 3 are omitted. Rule 4 of Schedule 1 is a consolidation and simplification of rules 4 and 16 of Schedule 1 to the 1993 Regulations, now headed “case management”. Paragraph (3) is new and provides that directions may relate in particular to evidence, including witness statements. Failure to comply with a direction may now lead to the penalties in paragraph (8). In rule 7(4) of Schedule 1 (pre-hearing review), the maximum amount of the deposit which may be imposed following a pre-hearing review has been increased from £150 to £500. Rule 8 of Schedule 1 is new and contains the powers available to the Minister or the tribunal in national security cases to direct or order that the tribunal sit in private, that the applicant or his representative be excluded or that witnesses' identities be concealed. Where one of those powers is exercised, or where the Minister addresses the tribunal with a view to it exercising one of those powers, the modifications to Schedule 1 set out in Schedule 2 apply. Rule 8 also imposes a general duty on the tribunal concerning disclosure of information contrary to the interests of national security. Rule 9 of Schedule 1 is new and provides that tribunal proceedings for unfair dismissal may be adjourned pending the outcome of interlocutory civil proceedings under section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (protection from certain tort liabilities). Rule 14(1) of Schedule 1 (expenses) is amended to make it clear that the unreasonable behaviour of a party’s representative may be taken into account when awarding expenses against that party. The tribunal is also now under a duty to consider an award of expenses in the circumstances described in rule 14(1), and these include circumstances where proceedings which have no reasonable prospect of success have been pursued. In rule 14(3), the maximum amount of expenses which a tribunal may award without taxation is increased from £500 to £10,000. In rule 15(2) of Schedule 1 (miscellaneous powers), the term “frivolous” has been replaced with “misconceived” (defined in regulation 2(2)) and “unreasonable” in sub-paragraphs (c) and (d) respectively. Those paragraphs permit the tribunal to strike out applications or notices of appearance in certain circumstances. Rule 18 of Schedule 1 is new and provides for the Secretary of the Office of Tribunals to give notice to the Advocate General for Scotland and the Lord Advocate in any proceedings in which a devolution issue arises, so that they may take part in the proceedings so far as they relate to the devolution issue. Rule 23 (notices etc.) is amended to provide for their addresses for service of notices. There are corresponding new rules and amendments on devolution issues in Schedule 4 at rules 11 and 16, Schedule 5 at rules 10 and 15, and Schedule 6 at rules 8 and 14. Schedule 2 is new and contains the modifications and insertions which apply to Schedule 1 when a power under rule 8(1), (2) or (3) is exercised (national security). It provides for the Advocate General for Scotland to appoint a special advocate to represent the applicant’s interests in the event of his, or his representative’s exclusion (rule 7A). Provision is also made for dealing with the reasons for the tribunal’s decision in national security cases (rule 7B). Part I of Schedule 3 contains modifications of the rules in Schedule 1 which apply in equal value cases. Only those paragraphs of the modified rules which are different from those in Schedule 1 are now specified in Schedule 3. In cases involving an equal value claim and in which a power under rule 8(1), (2) or (3) of Schedule 1 is exercised, the rules in Schedule 1 are modified in accordance with both Schedule 2 and Part I of Schedule 3, but they are subject to the modifications in Part II of Schedule 3. The rules for use in proceedings involving appeals against the imposition of industrial levy notices issued under the Industrial Training Act 1982 (c. 10) are now in Schedule 4. The rules for use in proceedings involving appeals against improvement or prohibition notices issued under the Health and Safety at Work etc. Act 1974 (c. 37) are now in Schedule 5. The rules for use in proceedings involving appeals against non-discrimination notices issued under the Sex Discrimination Act 1975 (c. 65) and the Race Relations Act 1976 (c. 74) are now in Schedule 6. Appeals against such notices issued by the Disability Rights Commission under the Disability Discrimination Act 1995 (c. 50) are now included in Schedule 6. A regulatory impact assessment of the costs and benefits that will result from these Regulations will be available in the Libraries of the Houses of Parliament when the Regulations are laid before Parliament, and from Lorraine Hamid, Employment Relations Directorate, 1 Victoria Street, London, SW1H 0ET.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.72.

Basis
the provision states liability on summary conviction; the provision states a penalty in older drafting
Confidence
0.72 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source