Faculty attacks employment devolution framework

Changes under a Draft Order in Council could deny claimants access to tribunals in Scotland, and give the impression that Scotland was second best in a two-tier system in Britain, the Faculty fears.

Following a recommendation of the Smith Commission that the operation of reserved tribunals should be devolved to the Scottish Parliament, the Draft Order was prepared by the Department for Business, Innovation and Skills to transfer functions of the Employment Tribunal to the First-Tier Tribunal for Scotland.

In a consultation on the Draft Order, the Scottish government said its provisions were still under discussion and may be subject to substantive amendment.

In a response, the Faculty said it had concerns about the definition of a “Scottish case” in the Draft Order, which took a different and much more restrictive view than was applied currently, and “it is unclear why this should be so.”

Under the Draft Order, cases with “a sufficient link to Scotland” would be heard in Scotland, but the Faculty worried that an additional level of complexity was being introduced into jurisdictional questions.

“This is regrettable from the point of view of easy access to employment rights…what seems a likely outcome is that claims that can presently be pursued in Scotland may not be able to be so pursued…That raises important considerations of access to justice. There is the potential for claimants to be denied access to Employment Tribunals in Scotland.”

The Faculty added: “We believe that, especially in the light of the important improvements brought about by the new Rules of Procedure adopted in 2013, the tribunals do excellent work in interpreting and applying the law, and we do not believe that the changes now being considered will lead to any improvement of the service which the Employment Tribunals offer to those who use the system. Indeed, we fear the very opposite will result.

“The nature of employment law is such that there is particular benefit in having a cohort of specialised judges with experience and expertise. If this is lost as a consequence of integration within a general First-Tier Tribunal, this will have a serious impact on the quality of justice provided.

“It would be regrettable if, as a result of the changes under consideration, the level of judicial decision-making in Scotland were to be perceived as lower than that found in England and Wales.

“Over the 50 years of their existence, employment tribunals have earned a place in the public consciousness as specialist labour courts that work well. If they are replaced by a chamber of a First-Tier Tribunal it is, we think, likely that ordinary people will take this as a sign that employment rights (and their adjudication) have come to be seen as less important than they were.

“Put simply, the changes will be seen by those who use the system as amounting to a downgrading of employment and equality law. We do not believe that it is the Scottish Government’s intention to encourage any such revaluing of the system of employment law as it operates in Scotland, and we hope that some thought can be given to how the ‘brand’ of the employment tribunal can be maintained.

“It would be unfortunate if, as seems entirely possible, the impression were to be given that, in respect of reserved employment rights, there was within Great Britain a ‘two-tier’ system, with Scotland providing a generally lower standard of judicial decision-making.”