The proposed changes to the employment tribunal in Scotland may at first blush appear simply administrative. However, the proposals could signal the death of the current employment tribunal system in Scotland, with significant consequences.
Current proposals
The Scotland Bill provides for the qualified transfer of competence over functions of the Scottish reserved tribunals, as specified by Order in Council (clause 37). The draft Scotland Act 1998 (Employment Tribunals) Order in Council has been published to illustrate the proposed approach in relation to the employment tribunal in this context. A consultation has been launched seeking views on the draft Order.
Currently Employment Tribunals (Scotland) is a Reserved Tribunal. It forms a “separate pillar” under the provisions of the Tribunals, Courts and Enforcement Act 2007, together with the Employment Tribunals (England and Wales) and the EAT.
It is proposed that Employment Tribunals (Scotland) will lose its stand-alone status and will form part of the First-tier Tribunal for Scotland (FTT(S)), which was established under the Tribunals (Scotland) Act 2014. Those determining cases in the FTT(S) are known as legal members. For employment judges this will involve much more than simply losing the title of “employment judge” (significant though that may be for a variety of reasons). They will, in effect, lose their status as members of the “judiciary”. This will include losing judicial tenure, which is regarded as an important component of judicial independence. England and Wales will continue to have employment judges in the employment tribunal system, described and treated as members of the judiciary with all that this entails: what is proposed for the Scottish system will look like a downgrading and a second-class system in comparison. This does not make much sense, as employment legislation is reserved and therefore employment judges in England and Wales and legal members in Scotland would be hearing the same types of cases, but without equivalent status.
It also appears that, under these proposals, Scotland will lose its specialist EAT and with it the expertise and calibre of judicial decision-making, which we have come to expect in Scotland from the EAT. The Scottish part of the EAT, it is suggested, would become part of the Upper Tribunal in Scotland.
Alternative proposal
There is a growing strength of feeling that the time is ripe for employment tribunals to become part of an Employment and Equality Court (see the Briggs Report). It may be that in England and Wales employment tribunals will move to become a division of the civil court. Should that happen, then it may make sense for Scotland to be on a par and for Scottish employment tribunals to be part of the civil justice system for Scotland. In that way, employment and equality matters could be dealt with in a specialised court within the Sheriff Court that covers the whole of breach of contract, restrictive covenants and equality-related goods and services cases, as well as existing jurisdictions.
Legislative disruption
The Scotland Bill envisages that “functions” of currently reserved tribunals (that is, those tribunals that deal with law reserved to the UK parliament) can be transferred to a Scottish tribunal where the functions are to be exercised in relation to “Scottish cases” (clause 37). However, the employment tribunal is different from the other reserved tribunals operating in Scotland because it is already a free-standing entity with a specific Scottish jurisdiction. This is an important distinction because it means that the employment tribunal can already be described as a “Scottish tribunal”. It does not need to be detached from a GB or UK-wide judicial body. It follows that it does not need to be transferred into a Scottish tribunal at all because it is already operating on that basis.
Arguably, the easiest and least disruptive course would be to keep the employment tribunal in Scotland in its current format as a free-standing tribunal with employment judges, rather than legal members. Employment tribunals in Scotland would still come under the Employment Tribunals Act 1996. Power could be transferred from the UK government department ministers currently responsible (the Secretary of State for Business, Innovation and Skills and the Lord Chancellor) to Scottish ministers. This would involve some minor amendments to the Employment Tribunals Act 1996. This would mean that employment tribunals in Scotland would still be called employment tribunals, which would minimise the legislative disruption involved in shifting them into the FTT(S). If that happens, then every piece of legislation that gives jurisdiction to employment tribunals will have to be changed for jurisdiction to be transferred to the FFT(S).
Furthermore, if employment tribunals are kept separate, then it is easier to detach that separate entity and move it across into the Sheriff Court as a specialist employment and equality division. This could happen at the same time that a similar change goes ahead in England and Wales, if the comments in the Briggs Report are followed. This would keep the employment law adjudication process on a par north and south of the border.
Scottish Government’s commitment to fairness and equality
This is a core commitment of the Scottish Government. The employment tribunals deal with equality-related matters and if the Scottish Government wants a society of real fairness and equality where parties have real rights that are properly determined, then they need to have expert judges – why would we put this at risk?
It is also worth bearing in mind that the employment tribunal in Scotland is one of the few parts of the Scottish justice system where there are a significant number of female judges (in fact, women outnumber men). If their judicial status and terms and conditions are removed or diminished, that will undermine the already slow progress that is being made in achieving a more diverse judiciary in Scotland.
These proposed changes affect all employment law practitioners and the work that we do on behalf of parties. What is proposed is not a sensible or credible alternative to the present set-up and is likely to result in a loss of expertise and specialisation and a downgrading of the work that we do. I would encourage all employment law practitioners to participate in the consultation which runs until 24 March 2016.
