The people of Scotland have spoken, and the answer is No. No, at least, to independence; however, the three main Westminster political parties were forced to make substantial concessions regarding further devolution of powers to the Scottish Parliament in order to secure the No vote which raises questions over the potential implications of so-called ‘Devo Max’ in the field of employment.

Employment, benefits, social security and immigration are all matters currently reserved to the UK Parliament but whether this will remain the case when further powers are devolved is up for grabs. Gordon Brown’s speech for the Better Together campaign the week before the referendum, in which he pledged a 12 point plan for devolution,  included employment rights amongst those further powers that he believes should be devolved to Scotland.

A House of Commons debate on the 12-point plan is expected in mid-October and a draft bill will follow in early 2015. However, it is unlikely that amending legislation will be passed until after the General Election in May 2015.

Assuming employment rights does form part of the parcel of powers to be transferred north of the border, the main areas in which the SNP would look to make legislative changes are outlined in a White Paper published in November 2013. These include:

  • Worker representation on company boards;
  • Targets for greater representation of women on company boards;
  • Making the living wage and minimum wage central to their employment policies;
  • Guaranteed work, apprenticeship or training for young people under 24;
  • Restoring 90 days’ consultation in collective redundancy situations affecting 100+ staff; and
  • Abolishing the shares for rights scheme.

What if the SNP do not hold a majority in Scotland? If Scottish Labour were to be returned to power in the next Scottish Parliamentary elections, the leader of the Scottish Labour party has committed that the administration would abolish tribunal fees. This is further than the Labour party have been prepared to go south of the border; in a speech to Labour party conference the Shadow Business Secretary Chuka Umunna pledged to “reform the tribunal system so affordability is not a barrier to justice” which is vague but suggests rather less than complete abolition of fees. Labour have also pledged to abolish “exploitative” zero hours contracts and increase the national minimum wage to £8 by 2020. Also speaking at Labour party conference, Shadow Chancellor Ed Balls also pledged to scrap the ‘shares for rights’ employee-shareholder regime. The Labour party have not made any firm commitment in respect of the other policy areas on the SNP’s list. 

It remains to be seen whether it will be possible to deliver ‘Devo Max’ and what the constitutional landscape will look like once the dust settles. However, if employment law is devolved, depending on the outcome of the 2015 General Election, the result could be very different regimes for Scotland and England in some respects. This could lead to problems for employers operating in both England and Scotland. In particular, if Devo Max results in a situation where tribunal fees are payable in respect of a claim brought in England, but not in Scotland, this would likely lead to employees forum shopping.

Employment rights are unlikely to form the most significant battleground in the bunfight over increased devolution, but there will be implications for UK employers which will need to be closely monitored.