Employment tribunal devolution to Scotland: What do you need to be aware of?

UPDATE

Since we wrote the blog below,the Scottish government has consulted on these issues, and is currently considering the consultation responses. The final shape of the tribunal system in Scotland remains to be seen.

Users of Workbox, the employment team's online HR site,can access up-to-date information on legislation, case law and consultations on our What's New? page.

Power over the management and operation of employment tribunals is to be devolved to the Scottish Parliament, although substantive employment rights and duties will continue to be dealt with at Westminster.

Draft regulations relating to the transfer have now been produced, although the government has indicated that there will be engagement with key stakeholders before they are finalised.

What should you be aware of?

Tribunal fees

Nicola Sturgeon's Programme for Government confirms that, once it has the power to do so, the SNP intends to abolish employment tribunal fees.

Who will be able to bring a claim in Scotland, and are we likely to see 'forum shopping'?

Assuming tribunal fees are indeed removed in Scotland, and retained in England and Wales, the question of where a claimant is able to raise their claim will be of significant interest, particularly to UK-wide businesses.

The draft regulations identify 'Scottish cases' i.e. those which it will only be possible to raise in a Scottish tribunal as cases in which:

• The respondent resides or carries on business in Scotland; and
• The acts or omissions complained of took place in Scotland; and
• The claim relates to a contract under which the work is or has been performed wholly or ordinarily in Scotland.

They also provide for 'concurrent cases' i.e. cases in which a claimant will be able to choose in the first instance whether to raise their claim in Scotland or England and Wales. These will be cases which are not 'Scottish cases' but which meet at least one of the following tests:

• The respondent or one of the respondents, resides or carries on business in Scotland;
• The acts or omissions complained of took place wholly or mainly in Scotland;
• The claim relates to a contract under which the work is or has been performed wholly or mainly in Scotland; or
• The tribunal has jurisdiction to determine the claim by virtue of a connection with Great Britain and the connection in question is wholly or mainly a connection with Scotland.

A claimant or respondent will be able to apply for a 'concurrent case' to be transferred from Scotland to England and Wales or vice versa if it could be determined 'more conveniently' in the other jurisdiction. The Tribunal President will also be able to initiate such a transfer.

Discussions with stakeholders and the Scottish and UK governments in relation to these provisions are on-going, so this may not reflect the final position. However, if they proceed on the above basis, it may be that claimants in other parts of the UK, working for a business with a Scottish arm, will seek to raise their claim here, with a view to avoiding tribunal fees.

Will ACAS early conciliation still apply?

Yes. The intention is that employment cases in Scotland will continue to be subject to early conciliation via ACAS.

Tribunal set-up

Scottish employment tribunals are to become part of the 'First Tier Tribunal for Scotland'. This is a body comprising various tribunals, such as Scotland's Lands Tribunal and Mental Health Tribunal. It is organised into a number of chambers, and presumably the Employment Tribunal will become a new and separate chamber.

This contrasts with the recent interim Briggs Report which recommends that employment tribunals in England and Wales be brought within the civil court structure, rather than being moved into the England and Wales Tribunals' Service.

Tribunal procedure

Although not identical, tribunal procedure in Scotland and England and Wales is currently very similar. Following the devolution of employment tribunals, the Scottish Court of Session will be given power to determine Scottish procedure, and this may ultimately result in greater divergence.

The regulations attempt to rein this in to a degree by providing that if the Court of Session in Scotland, or the Secretary of State acting on behalf of the rest of the UK, intend to make procedural rules, they must first consult the other "with a view to maintaining and promoting, as far as practicable, consistency in matters of practice and procedure".

The explanatory note emphasises that whilst such consultation is intended to encourage informal dialogue, it does not mean that the rules in Scotland and England and Wales must be the same.

If, as described above, tribunals in Scotland move within the Tribunal Service, whilst those in England and Wales move into the civil court structure, this may, over time, also contribute to differences in procedure.

Any feedback or concerns?

Brodies' employment team will be taking part in discussions regarding these proposals, and we will post on any significant developments. In the meantime, if you have any concerns or would like to discuss any aspect of this with us please get in touch with your usual Brodies' contact.