Divergence or uniformity? Employment law and procedure across the legal systems

As an employment lawyer mainly practising in Scotland who is originally from Northern Ireland, I take a keen interest in how the procedure and the law differs across the legal systems of the UK and how devolution impacts the landscape.  Indeed, the separate legal systems and the doctrine of precedent can occasionally produce unusual results, which are challenging for those of us advising clients what the law actually is. At present, for example, the Court of Appeal has indicated that the Northern Irish Court of Appeal decision in Chief Constable of Police v Agnew[2019] NICA 32, [2019] IRLR 792 which affirmed that there did not need to be a limit on the gaps between deductions making up a series for the purposes of bringing deductions claims, should be preferred over the contrary Employment Appeal Tribunal (EAT) decision in Bear Scotland Ltd v Fulton[2015] IRLR 15, [2015] ICR 221,. Technically, however, it is the EAT decision in Bear Scotland which is binding on tribunals across Britain.  

Meanwhile, devolution of employment law remains high on the political agenda, particularly in Scotland. The Devolution (Employment) (Scotland) Bill, which seeks to amend the Scotland Act 1998 in order to grant legislative competence for employment matters to the Scottish Parliament, is due for its second reading on 3 February 2023.Further, devolution of employment tribunal functions is anticipated to occur in 2025.   It seems an apt time therefore to consider how different the procedure and the substantive laws actually are throughout the employment tribunals of Scotland and England & Wales. 

The procedure in the employment tribunals  

Although the legislation is identical, the employment tribunals operate separately in Scotland and England & Wales. There is one set of rules – the Employment Tribunal Rules of Procedure 2013 – which apply north and south of the border. In Scotland and England & Wales there are different presidents producing Presidential Guidance. This guidance deals with all manner of issues and clarifies what should be done in particular situations. Practitioners will recall during the pandemic the guidance which was issued instructing parties how to conduct the online Cloud Video Platform hearings. Other guidance responds to the particular requirements of that jurisdiction. Parties using tribunals in Wales, for example, have the right to use the Welsh language in the conduct of hearings in Wales and a Presidential Practice Direction was issued in 2020 to guide tribunals.  

One major difference in the jurisdictions is the use of witness statements to replace witness evidence given by examination-in-chief. These are much more commonly ordered in England & Wales, although the pandemic and the move to online hearings in Scotland certainly saw an increase in the use of witness statements. On 3 August 2022, the President of the Employment Tribunals (Scotland) issued a Practice Direction and Presidential Guidance on the use of witness statements in Scotland, including factors to consider when ordering witness statements. The Practice Direction reaffirms the presumption that oral evidence will generally be preferred over written evidence in most circumstances. In English & Welsh tribunals witnesses can be present in the tribunal and hear the witness evidence prior to giving their own evidence, whereas in Scottish tribunals this is not the recognised practice. Another notable difference is the greater likelihood in English & Welsh tribunals that a judge will issue an oral judgment without reserving judgment and sending a written judgment to the parties in due course. I find that when this happens in Scotland, it is more than likely issued by a judge who formerly practised in England. Another difference includes rules concerning disclosure of evidence (in Scotland there is no automatic duty to disclose documents which may adversely affect your own case).  

The law  

In employment law, the tribunals and courts of the separate legal systems of Scotland, Northern Ireland and England & Wales often deal with legislation which applies UK-wide. The fact that there are two major sources of employment law – the individual contracts of employment and the various statutory rights which apply to the various employment relationships – typifies the confusion. Typically, the contractual aspects of disputes are governed by the legal system’s common law which tend to vary, in particular between Scotland and the rest of the jurisdictions. Meanwhile statutory rights tend to apply UK-wide reflecting the various devolutionary arrangements which reserve employment law to the law-making powers of the Westminster Parliament. Nowadays, the European Union (Withdrawal Agreement) Act 2020, currently makes all EU law part of domestic law (retained EU law), which applies throughout the United Kingdom. 

Ultimately the Supreme Court as the final court of appeal for each jurisdiction will always have the last say and this generally creates a uniform approach to the interpretation of statute, provided of course that the particular disputes get that far. The Supreme Court routinely considers cases particular to the laws of each jurisdiction and the make-up of the court’s judges and their respective backgrounds makes them well placed to do so. Decisions of the Court of Session in Scotland and the Supreme Court are binding on employment tribunals. EAT decisions are also binding on tribunals regardless of where in the UK the EAT is sitting.  The EAT tends to follow the decisions of the higher courts regardless of geography; the stated position of the Scottish EAT is that it will only depart from an opinion of the Court of Appeal where it purely relates to a particular aspect of Scots law (Brown v Rentokil Ltd [1992] IRLR 302). Equally, the Court of Appeal has said it is a matter of “pragmatic good sense” that tribunals and the EAT in either jurisdiction will follow the decisions of the higher appeal court in the other jurisdiction (Caulfield and Ors v Marshalls Clay Products Ltd; Clarke v Frank Staddon Ltd. [2004] EWCA Civ 422).   

A recent case which came before the EAT sitting in Scotland – Ineos Infrastructure Grangemouth v Jones & Ors [2022] EAT 22  – has emphasised that, where the legislation applies north and south of the border, it is desirable for it to be interpreted uniformly. In this case, the Scottish EAT considered an argument from the employer that an offer of a pay rise made to staff which would have engaged the prohibition on such offers in s145B of the Trade Union and Labour Relations (Consolidation) Act 1992 was not, in Scots law, an offer at all and therefore did not engage the statute. In Scots law, a unilateral promise can be distinguished from an offer even in a bilateral situation like an employment relationship and can be binding and enforceable without acceptance. The EAT nevertheless found this argument to be misconceived; the purpose of the statutory provision was to protect rights enshrined in article 11 of the European Convention on Human Rights and these were the same both north and south of the border.  

The Court of Session has tended to not be as persuaded that uniformity is paramount.  The Inner House was unwilling to ignore the Scots law doctrine of mutuality of contract in the interests of there being a consistency of approach to the law of constructive dismissal in the application of s.95(1)(c) of the Employment Rights Act 1996 (McNeill v Aberdeen City Council (No.2) [2013] CSIH 102). Lord Drummond Young’s judgment referred to there being “no obvious reason why, in the absence of any express provision in the statute, section 95(1)(c) should be construed as referring to a rule of English law rather than Scots law”.  

His Lordship added that consistency of approach “does not seem a sufficient justification for a major inroad upon the Scots law of contract in a case that is otherwise governed by Scots law”.  

The trend 

In reality, despite some differences, uniformity is the watchword across the nations of the UK with the trend arguably pointing towards things becoming more similar, with the notable exception of Northern Ireland. All of this is likely to change in the future if employment law is devolved from the powers of the Westminster Parliament. It is evident from Northern Ireland that the devolution of employment law has resulted in a distinct divergence of both law and procedure. What direction this will take things in Wales and Scotland remains to be seen, but some indication has been apparent already. Agricultural workers in Scotland and Wales, like their Northern Irish counterparts, rely on more favourable provisions on annual leave and rest breaks because this limited aspect of employment law is devolved. Apprenticeships in Scotland are governed by the common law, rather than the statutory overlay found in England and Wales. Separate Fair Work Commissions in both nations exist. Those concerned about the disparate results this might produce might be reassured by considering that, whatever the future constitutional set up will lead to, the principle of judicial comity will apply and the tribunals and courts applying employment law will generally cohere even where the rulings are not strictly binding.

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