Julie Hamilton

The facts

In September 2015, an employee began proceedings in the Employment Tribunal in Glasgow against her former employer alleging harassment. The employment tribunal decided in her favour and her employer was ordered to pay around £75,000 in damages.  

However, before payment was received by the employee, information was discovered to suggest that the superiors of her former employer were intending to close down the existing business and transfer its funds to another entity, in order to defeat the award made to her.

By October 2016, the employer’s bank account contained only £4,000 and the employee had not received any of the £75,000.  

The arguments

The employee subsequently raised a Court of Session action arguing that she would not have found herself in the position of being unable to recover the sums awarded to her if she had been able to effect arrestment on the dependence (obtain security for the sum claimed) against her former employer at the time of commencement of the tribunal proceedings. An employment tribunal judge, however, has no power to grant an order for security.

The employee argued that the fact that she could not have obtained security from the employment tribunal at the time of commencement of the proceedings was a breach of her right to “effective judicial protection” under EU and human rights law. She sought compensation for this breach of her rights.

The Secretary of State argued that the fact that the case was being decided in the employment tribunal did not stop the Court of Session or Sheriff Court from being able to grant security for the sum claimed. The employee could have raised proceedings in the Sheriff Court at the time of commencement of the tribunal proceedings asking the court to grant security over the £75,000. Therefore, her rights had not been breached and she was not entitled to compensation.

The judgment

The court agreed with the Secretary of State that it was competent for proceedings to be raised in either the Court of Session or the Sheriff Court for the sole purpose of obtaining security over a sum sought in a case being decided by a different court, in this case, the employment tribunal. Therefore, this is what the employee could have done. The additional expense and inconvenience of doing so would have been modest. Therefore, the fact that the employee would have had to have done this in order to obtain security was not a breach of her rights under EU or human rights law.

In reaching its decision the court referred to two court actions for payment, both brought in English courts against defendants domiciled in England who owned property in Scotland. In both cases, the pursuers raised actions in the Court of Session for the sole purpose of obtaining security over the defendants’ property in Scotland. It was decided that the pursuers were allowed to do this, even though the merits of the case would be determined by the English courts.

Comment

This decision highlights two key points.

Firstly, the need for employers to be aware that an employee may seek security over the sum claimed when an employment tribunal claim is commenced and can do so in the Court of Session or the relevant Sheriff Court.

Secondly, it is also competent to raise an action in the Court of Session to obtain security over property in Scotland, even where the merits of the case are being decided elsewhere, such as in England.

Julie Hamilton is a partner and Sarah Hobkirk a trainee at MacRoberts LLP