Lawyers warn employment tribunal claimants could overwhelm Scottish system to avoid fees

Lawyers have taken opposite sides over proposals to devolve employment law to Holyrood, with some arguing Scotland could become overwhelmed with cases from elsewhere in the UK because of the Scottish government’s intention to scrap controversial hearing fees.

DLA Piper thinks claimants will begin “forum shopping” after the changes come into effect to save money.

But others say the savings would be neutralised by travel and accommodation costs associated with bringing a case north of the border.

The fees can be as high as £1,200 and have been widely condemned by lawyers, many of whom say they inhibit access to justice.

However, Kate Hodgkiss, head of employment at DLA Piper, said the number of cases would rise considerably were the proposals to be implemented.

Scottish tribunals could have jurisdiction if cases had a “sufficient link” to the country.

Ms Hodgkiss said: “The draft proposals have the potential to result in a substantial increase in claims from employees outside of Scotland looking to take advantage of the potentially cheaper Scottish tribunal system.

“The crucial point is that, under these new proposals, Scottish tribunals will have power to deal with any case involving an employee with a link to Scotland, including companies with offices or dealings north of the border. In short, this means that we could see a rise in cases where the connection to Scotland is tenuous at best.

“Although there are provisions for cases to be transferred, and we would expect to see cases with weak links to Scotland being transferred back to the appropriate tribunal, forum shopping could result in a significant administrative headache for the Scottish tribunal system and a potential cost burden for employers.

“In addition, a genuine concern for all parties in valid Scottish cases will be the resulting delays in dealing with cases where there is a backlog of unexpected claims that have been lodged in Scotland to simply avoid paying fees.”

But Stephen Miller, an employment specialist at Clyde & Co, played down the claims.

He said: “If you live in Leeds and you want to bring a claim in Scotland, it’s not going to be that easy to do that.

“And even if you are able to, the saving in fees would be offset by the cost of taking you and your lawyer to Scotland and paying for accommodation.”

He added that it might make some sense for cases involving multiple claimants but that for the majority it would be uneconomic.

The Scottish government is seeking views on a draft Order in Council which would see employment tribunals transferred to the Scottish Courts and Tribunals Service.

A government spokeswoman said: “We are consulting on the draft Order in Council which would see the transfer of certain functions from the Employment Tribunal to the Scottish Tribunals.

“In particular we are asking for views on the definition of those cases that would heard in Scotland.

“We will listen carefully to the consultation responses and we are committed to ensuring cases are heard in the most appropriate jurisdiction and that access to justice is maintained.”