Brian Napier QC and Jonathan Mitchell QC discuss the possible implications of the future abolition of Employment Tribunal fees in Scotland.

The recent rejection by the Court of Appeal to Unison’s challenge to the fee-charging regime that is now part of our employment tribunal system comes as a set-back to all who see fee-charging as a denial of (access to) justice. There is, however, good news for some claimants.

The Scottish government has announced as part of its legislative programme for 2015-16 (A Stronger Scotland – The Government’s Programme for Scotland 2015-16) that it will remove fees from employment tribunals.

It can do this because, under the new powers given in the Scotland Bill 2015, (Clause 33, which inserts a new Para. 2A into Part 3 of Schedule 5 to the Scotland Act 1998) it is given new controls over ETs (and the EAT) so far as these bodies exercise their functions in relation to “Scottish cases”.

The details are to be specified in an Order in Council (not yet published) but it is to be expected that this will include a power to decide if fees are to be charged.

The government has said it will proceed with the change “when we are clear on how the transfer of powers and responsibilities will work” so the precise timetable remains uncertain. It will obviously have to await the enactment of the Scotland Bill and the making of the Order in Council referred to above. But it is not too soon to start thinking about what will be a new dimension to the law governing employment tribunal procedure.

Are we likely to see “forum shopping” emerge as a significant part of claimants’ thinking on bringing a claim? Under the 2013 Regulations, provision is made (Rule 8) for the raising of a tribunal in either Scotland or England and Wales in a wide range of situations.

A claim may be presented in Scotland (or England and Wales) if the respondent, or one of the respondents, resides or carries on business in Scotland (or England and Wales). So it will not be too difficult to find a basis on which a claim by someone resident in England can be brought in Scotland. At the very least anyone employed by a UK-wide employer that carries out part of its operations north of the border is qualified to do so.

Even if that criterion is not met, a claim can be raised in Scotland if one or more of the acts or omissions complained of took place there, or if the claim relates to a contract under which work is to be performed partly in Scotland. There is also a residual category (particularly relevant when the complaint relates to events taking place abroad) covering the situation where there is a connection with Great Britain and the connection in question is at least partly a connection with Scotland.

So will claimants from England and Wales find the cost of travelling to Edinburgh or Glasgow preferable to paying fees of £1200? Will this mean a significant increase in workload for Scottish employment tribunals? The answer will depend on what meaning (if any) is given to the phrase “Scottish cases” in the Order in Council when that is made.

It may also depend on a separate rule in the 2013 Regulations. By Rule 99 proceedings started in one jurisdiction may be transferred to the other where the President (England and Wales) or the President (Scotland) so decides, either on the application of a party or on his or her own initiative.

The decision is a matter for Presidential discretion, but that has to be exercised only where “in that person’s opinion would be more conveniently be determined ”

It will be interesting to see how that discretion is exercised and how it may come to be challenged in particular cases. It is difficult to see how it could ever be maintained that it is more “convenient” for a claimant to have to litigate in a jurisdiction in which there is a requirement to pay a substantial fee in order to start proceedings and another to secure a hearing.

But Rule 99 may turn out not to be relevant at all. The requirement to pay fees (or not) may be determined according to the jurisdiction in which the proceedings are started, irrespective of any transfer thereafter. One thing is certain, however, there are interesting times ahead for all who will be advising on cross-border employment claims!