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Diligence on dependence competent in employment claims, Inner House rules

6 August 2019

Scottish civil courts are able to grant protective orders against an employer's assets where claims are brought to an employment tribunal for damages for discrimination or harassment, the Inner House of the Court of Session has ruled.

Lord Drummond Young and Lord Malcolm outvoted the Lord President, Lord Carloway, in refusing an appeal by Anela Anwar, who had won a substantial award in the employment tribunal in Glasgow but had been unable to implement it. She alleged that the respondents in those proceedings no longer had the funds they possessed while the proceedings were taking place, that her award was based on EU law, which also obliged member states to provide effective remedies for implementing Community-based rights, equivalent to remedies available for comparable claims not involving Community law, and that in failing to provide such a remedy in Scots law the respondent Secretary of State was in breach of EU law.

The Lord Ordinary held that Scots law did allow such protective diligence, and that it satisfied the principle of effectiveness.

On appeal the Lord President would have found for the petitioner. He took the view that at common law, diligence on the dependence could be granted by a court only in respect of an action before that court which claimed payment; it could not be granted on the basis of the existence of an application pending before a different court or any tribunal which was not a court. "It is only available if the action is competently before the court", and in terms of the Equality Act 2010 the petitioner's original claims could only be brought before the tribunal.

Further, the exercise in securing an effective remedy was "practically impossible or excessively difficult", the test for effectiveness applied in EU law, for a large number of claimants, having regard to the cost and formality of proceedings before the court as compared with the tribunal.

Lord Drummond Young, with whom Lord Malcolm agreed, however ruled that diligence on the dependence was available with such claims. In his view the case law established that a protective action could be raised in a Scottish court even though it had no jurisdiction to hear the merits of a dispute; that the purpose was to obtain a form of interim security; and that the basis for the action was the existence of proceedings in another court. Subsequent legislation on diligence had affected aspects of the procedure but not when it might competently be used; nor did the enforcement provisions of the Equality Act.

On effectiveness, the EU principle did not require any one particular form of procedure. Any form of measure would suffice provided it was, objectively, reasonably effective in providing security. It was also necessary "to have regard to the totality of remedies that are available". In addition, in the present case there was a serious question as to whether diligence on the dependence would have caught significant funds.

Noting that the form of action was relatively simple, he concluded: "In my opinion the foregoing procedures do not contravene the principle of effectiveness, or an effective remedy, under EU law. The additional writ or summons that is required will be short and simple and should be inexpensive. If the test is that an effective remedy should not be “excessively difficult” (the impact test), I consider it very clear that the straightforward procedures required in the sheriff court are not excessively difficult. Even if a more straightforward test of effectiveness, or an effective remedy... is followed, I am of opinion that the existing law of diligence provides an effective remedy."

All the judges were agreed that there had been no breach of the EU principle of equivalence, the appropriate comparator being another employment-related claim, and not a claim based on EU directives that prohibited discrimination across a range of sectors. They further held that this was not an appropriate case in which to protect the petitioner's anonymity, where the present petition and opinion were concerned with matters of law and not with any harassment or discriminatory action taken against the petitioner.

Click here to view the opinions.

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