Employment tribunal transfer proposals cause Faculty concerns

Government proposals for the devolution of the employment tribunal system in Scotland have been criticised by the Faculty of Advocates, in a consultation response published today.

Jurisdiction issues, and fears of a loss of judicial specialism, are highlighted by Faculty in its comments on a draft Onder in Council which follows a recommendation of the Smith Commission that the operation of reserved tribunals should be devolved to the Scottish Parliament.

Under the Order, prepared by the Department for Business, Innovation & Skills functions of the employment tribunal would be transferred to the First-tier Tribunal for Scotland. The Scottish Government has indicated said that the proposals are still under discussion and may be subject to substantive amendment.

In its response, Faculty says it has concerns about the definition of a “Scottish case” in the draft Order, which in taking a much more restrictive view than has been applied to date, could introduce "an additional level of complexity" into jurisdictional questions.

Under the draft Order, one qualifying condition for a case to be a Scottish case is that the work under the contract was "wholly or ordinarily" performed there. At present it is enough if the work is partly performed in Scotland. Further confusion arises, Faculty adds, because the different phrase "wholly or mainly" is used in relation to concurrent cases – those which must be transferred to tribunals in England & Wales.

“What seems a likely outcome is that claims that can presently be pursued in Scotland may not be able to be so pursued", Faculty's response states. "That raises important considerations of access to justice. There is the potential for claimants to be denied access to employment tribunals in Scotland.”

The Scottish Government has promised to abolish employment tribunal fees for cases brought in Scotland. Faculty observes: "It may be that there are economic or policy considerations in restricting the number of claims to be brought in Scotland, but it is important that the legislation is as clear as possible to avoid unnecessary litigation."

Regarding the basic approach of integrating the tribunals with the First-tier Tribunal, Faculty "[does] not believe that the changes now being considered will lead to any improvement of the service which the employment tribunals offer to those who use the system. Indeed, we fear the very opposite will result".

“The nature of employment law is such that there is particular benefit in having a cohort of specialised judges with experience and expertise", the response states. "If this is lost as a consequence of integration within a general First-tier Tribunal, this will have a serious impact on the quality of justice provided."

Faculty's concerns come under three heads: 

• the role and status of employment judges, the loss of which title may lead to "a loss of identity and cohesion", affecting morale especially when taken with the proposed rediction of tenure to fixed terms of five years;
• the quality of judicial decision making, which may suffer for similar reasons and because employment tribunals are generally recognised as having more in common with ordinary courts than with other tribunals which may have less emphasis on the protection of rights;
• and the public perception of change, with the risk that ordinary people will believe that employment rights, and their adjudication, are seen as less important than previously.

“It would be unfortunate if, as seems entirely possible, the impression were to be given that, in respect of reserved employment rights, there was within Great Britain a ‘two-tier’ system, with Scotland providing a generally lower standard of judicial decision-making”, Faculty observes.

Click here to access the full response.