Partial devolution of Employment Tribunal system ‘clunky’, says Law Society

The society highlights several issues in its response to the Scottish government’s consultation on the draft Order in Council for the transfer of specified functions of the Employment Tribunal to the First-tier tribunal for Scotland.

It has called for the future development of employment law, including the resolution of employment and equality disputes and dealing with appeals, to be considered consistently across Scotland, England and Wales.

It also warned of the potential loss of expertise and diversity and difficulties that could result from the proposed restrictive definition of a “Scottish case”.

Joyce Cullen, convener of the Law Society’s employment law committee, said: “The Employment Tribunal currently enjoys a high level of recognition and respect with the public and within the judiciary and legal profession and it’s important to ensure that this is retained in a new Scottish system.

“Thought should be given to the future development of employment law throughout the UK when considering how to effect the devolution of the Employment Tribunal. Employment law as a subject is governed by the same legislation across the UK and the development of consistent case law, building on decisions made across jurisdictions, is both beneficial for development of the law itself and in promoting consistency and predictability for businesses and employees.

“It is also desirable that developments relating to access to the Employment Tribunal system in Scotland should be consistent with, or at least able to take into account, any future changes to the system in England and Wales. It should be seen of equal quality and standing while still accommodating the particular Scottish elements and characteristics of law and society. We hope that care will be taken to ensure the status of employment law in Scotland is not diminished and that the unique characteristics of the Employment Tribunal which support access to justice for those going through the system are preserved.”

The Law Society has also suggested that the administration of Employment Tribunals in Scotland should be devolved in its entirety.

Ms Cullen added: “The proposal to devolve only “the transfer to a Scottish tribunal of functions of a tribunal that relate to reserved matters, so far as those functions are exercisable in relation to Scottish cases” is clunky.

“Under this wording, the Scottish government could transfer the functions to an Employment Tribunal, set up as a separate pillar within the tribunal system, but it is not clear that it would have the power to control the management and administration of that tribunal. A better solution could be found”.

“We also have some concerns around the restricted definition of a Scottish case within the draft Order. The current, much broader, definition, set out in the 2013 Employment Tribunals Rules of Procedure offers more flexibility for claimants in deciding where to raise a case and for transfers of cases between jurisdictions.”

The society’s full response can be found on its website.