Summary

At present, the UK Government retains powers in relation to employment law and the operation of Employment Tribunals in Scotland. This means that the same rules and procedures apply to tribunals throughout the UK. As recommended by the Smith Commission, proposals have now been put forward to devolve the management of employment tribunals in Scotland to the Scottish Government. Powers relating to employment legislation will remain with the UK Government.

The Scottish Government has issued a consultation paper summarising their proposed changes.  We are currently drafting our response to the consultation paper and are eager to include the views of our clients and contacts as part of this process.

The proposals

The Scottish Government’s proposals envisage that employment tribunals in Scotland would cease to exist as a separate and distinct form of tribunal.  Instead, they would be incorporated as part a unified tribunal structure applying across all Scottish tribunals, albeit they would still be dealt with by specialised judges.  No mention has been made about Employment Tribunal fees, however, in devolving the tribunal system the Scottish Government would gain the power to remove the current fees regime. It is worth noting that there are also proposals in England & Wales which suggest making significant changes to the way in which Employment Tribunals operate.  This raises the prospect that procedure north and south of the border could become significantly different in a short space of time.

A Scottish case – to be or not to be?

A key aspect of the proposed devolution is the identification of what amounts to a Scottish case which should be dealt with under the devolved process.  Whilst this would be apparent in the vast majority of cases, there will be many examples where there is the potential for dispute.

In order to deal with such cases, the draft legislation provides for both “Scottish cases” (where the employer is based in Scotland, the acts of complained of took place in Scotland and the employee normally works in Scotland) and “Concurrent cases” where some link can be shown to Scotland (under the current proposals this might only need to be that the company “carries on business in Scotland”).

Scottish cases must be heard in the new Scottish tribunal, whilst concurrent cases may be heard in Scotland.  In relation to the latter we assume that determining this point would require a preliminary hearing.

The Scottish Government and BIS have already conceded that their proposals are flawed and require further thought.  Given the Scottish Government’s suggestion that fees will be removed under a devolved system, it will important to have a clear and fair means of identifying jurisdiction to avoid claimants south of the border using Scotland as a cheaper alternative.

Consultation

The Scottish Government has issued a consultation paper summarising the proposed changes which it is looking to implement.  It has also posed the following two questions in relation to the proposed drafting as well as a general request for comments on the proposals:

  1. Do you consider that the provisions of the draft order adequately reflect what is a Scottish case? and
  2. Do you feel that the provisions of the draft order appropriately define those cases that have a sufficient connection to Scotland?

We are looking to put together a consultation response from the firm.  Whilst this will reflect our own views and opinions on the proposals, we would also like to incorporate the views of our clients and contacts as part of the process and we would welcome your comments.  Any comments which you provide will be treated confidentially and we will not disclose you or your Company’s name as part of our response unless you are happy for us to do so.

The consultation is due to close on 24 March 2016.  We would therefore ask that you provide us with your comments by no later than 4 pm on 22 March 2016.

Full details of the current proposals and a copy of the Scottish Government consultation paper can be found here