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Equal but different?

14 March 16

The proposed devolution of employment tribunals could bring with it changes that impact adversely on the administration of justice in employment cases

by Amanda Jones

The referendum in Scotland, in which the electorate voted to remain within the United Kingdom, was 18 months ago. Since then, argument has continued about the extent of the powers that should be transferred to the Scottish Parliament.

While the political discourse is far wider than employment law, and indeed the legal system more generally, there already seems to be a tectonic shift emerging in the way in which both jurisdictions are approaching employment and discrimination law. However, much is still uncertain and any rebalancing might well be at the expense of Scotland becoming a second-class citizen in the administration of employment justice.

The Scotland Bill is at the committee stage of the House of Lords at the time of writing. Regular attendees of the Employment Tribunal National User Group have been waiting with bated breath for some time to hear what changes the bill might bring to practitioners and users of Employment Tribunals (Scotland). We have known for some time that under clause 37 of the bill, power over the management and operation of Employment Tribunals (Scotland) is to be devolved to the Scottish Parliament. We now know the details proposed, as the draft regulations in relation to the transfer have been produced (in the form of the draft Scotland Act 1998 (Employment Tribunals) Order in Council), with the Scottish Government launching a consultation into the proposals.

Questions of status

Under the proposals, Employment Tribunals (Scotland) will become part of the Scottish First-tier Tribunal, governed by the Tribunals (Scotland) Act. This is a potentially worrying move for all concerned. The proposed changes, if brought in, will bring an end to the employment tribunal in Scotland sitting as a “separate pillar”. While there is support for change in the Briggs report (moving Employment Tribunals (Scotland) into the civil court system, for example), the reasons for maintaining the “separate pillar”, which have been expressed by system users in the past, still remain. One of the main concerns is that complex employment and discrimination claims will potentially be heard by legal members of the First-tier Tribunal who, albeit no doubt skilled and experienced in their own fields, will not have practised in employment law and are not familiar with the relevant legislation and extensive body of case law. There is also unease around the impact on an appeal route in Scotland.

There is a general argument that the nature of employment disputes makes them difficult to place in either the civil court system or the tribunal system. No reasoning has been given as to why this is no longer the case. There will need to be more information provided on how Employment Tribunals (Scotland) will work within the Scottish First-tier Tribunal structure before users can come to any informed decision as to removing the “separate pillar”. The current proposal will be unsatisfactory and unwelcome otherwise.

Perhaps more significant is the possible effect that the proposals will have on the judicial position of employment judges in Scotland. Those determining cases in the Scottish First-tier Tribunal are known as ordinary or legal members, with only sheriffs and Court of Session judges known as judicial members. Currently all employment tribunal judges are members of the judiciary; however in moving Employment Tribunals (Scotland) within the Scottish First-tier Tribunal, it is somewhat uncertain whether those who are not also Court of Session judges and sheriffs will lose that title, status and along with it tenure which is the central tenet of judicial independence. We may, as a consequence, end up with a Scottish system which is secondary in status, and could subsequently become second rate in standard to its English & Welsh counterpart. That assumes the current judiciary are prepared to transfer to ordinary or legal member status: if they do not, there would be a worrying loss of collected skill, knowledge and expertise. The major problem is that the proposals give no detail on any of this, and so give practitioners no certainty as to their potential impact. 

Opposition to London

Another major proposed difference is the Scottish Government’s commitment to abolishing employment tribunal fees. The Scottish Government published its programme for 2015-16 last year, stating: “We will abolish fees for employment tribunals, when we are clear on how the transfer of powers and responsibilities will work. We will consult on the shape of services that best support people’s access to employment justice as part of the transfer of powers of employment tribunals to Scotland.” While there is a UK-wide consultation ongoing in relation to the impact of employment tribunal fees, the Scottish Government has rendered that outcome otiose. However, it has yet to be seen when fees will in fact be abolished, particularly in light of the publication of the draft Order in Council.

It would also be fair to say that the provisions of the Trade Union Bill have not been well received by the Scottish Government. Following the announcement of the proposed reforms, the First Minister was reported as saying that Scotland had a golden opportunity to defend union rights on strike action that were being eroded by the UK Government’s Trade Union Reform Bill if the Scottish Parliament were empowered to have different legislation to the rest of the UK. Ahead of a debate in Holyrood on the legislation on 26 January 2016, Roseanna Cunningham, the Cabinet Secretary for Fair Work, Skills and Training, assured workers in Scotland that no stone would be left unturned “as we seek to block this exceptionally damaging legislation being applied in Scotland”.

It is therefore clear that there is a great divide between the approach of the Scottish Government and Westminster to trade union law and that the Scottish Government will not only take whatever measures it is able to in order to protect rights of trade unions, but also use that as the basis of a campaign for the devolution of employment law more generally. Perhaps unsurprisingly, it has the support of unions such as Unite in these endeavours.

This difference in approach also extends to equality issues. The Scottish Government’s programme stated: “We will extend the duty on public authorities to publish gender pay gap information and statements on equal pay, including occupational segregation. These duties currently apply to authorities listed in the Equality Act 2010 which have more than 150 employees. We propose to lower the threshold so that the duty applies to listed authorities with more than 20 employees.”

It also appears that the Scottish Government is rather more open to mandatory quotas to ensure the wider participation of women at board level than Westminster. The stated commitment by the Scottish Government to have public boards reflecting a 50-50 split between men and women by 2020 is significantly more ambitious than the recommendations in Lord Davies’s reports. While his most recent report on the progress being made in increasing the number of women on boards in the private sector (available at thedaviesreview.com) has shown some positive movement, it is notable that there is still a lack of women in executive positions and a reluctance to countenance mandatory quotas to achieve progress. The Scottish Government certainly made a statement in the establishment of its own cabinet by the appointment of so many women, and seems willing to take steps to advance equality in this regard by legislation or otherwise.

For further consideration

Many questions remain unanswered. Issues of industrial relations aside, how will the Scottish Government be in a position to fund an entirely separate tribunal system from that currently in operation across the UK? One can imagine that there will be no extra money provided from Westminster to deal with the increase in costs which is bound to occur if tribunal claims increase substantially and fees are abolished.

Further, and perhaps more importantly from a long-term point of view, what sort of tribunal service will be provided? What will be the “shape of services” which are to support access to employment justice on which there is to be consultation? There is much enthusiasm among employment and discrimination lawyers for an Employment & Equality Court, being a more appropriate forum to deal with employment claims. It can be seen that this might provide a more robust forum in which to litigate employment matters, rather than a tribunal or more general court.

So, in the rush to devolve the operation of tribunals in Scotland, and the welcome reception of the accompanying commitment to abolish fees, are employment lawyers in Scotland missing the risk of a potential move to a second- rate system? We might feel that the rights employees have are more fairly balanced, but if the forum in which they are to be enforced is not in a sufficiently credible position within the justice system, are those rights compromised? If the system in England is operated within a context of fewer rights, but those rights are enforced in a specialist Employment & Equality Court (although it is by no means certain that this will be the case), rather than a First-tier Tribunal, which system would be preferable?

There is much uncertainly, but we do need to consider carefully the longer term outcome of reforms. When it comes to the exercise of employment rights in 2016 and beyond, those of us who are north of the border should perhaps be careful what we wish for.

Amanda C Jones is a partner with Maclay Murray & Spens LLP

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