Scottish Employment Tribunal rejects application to dismiss employer’s response based on use of English lawyer

The claimant, Mr R Rohatgi, argued that his employer had acted “scandalously” by using an English lawyer and had deprived a local lawyer of fees. His former employer, Capita Customer Management Ltd, contested the strike out application and argued that the relevant statutory provisions did not limit legal representation by jurisdiction in the manner the claimant stated it did.

The application was considered by Employment Judge L Murphy, with Tribunal members A Grant and N Elliot. The claimant appeared in person, while the respondent was represented by Mr O Mills, an English barrister.

Legal mistake

The claimant was employed by the respondent as a Customer Service Advisor from 9 May 2022 until he was dismissed on 9 August 2023. He thereafter complained of direct race discrimination under section 13 of the Equality Act 2010, which the respondent denied. At a preliminary hearing on 6 November 2023, the respondent was represented by an English qualified barrister, Mr Jackson, which the claimant contested on the basis that he did not have rights of audience before the Tribunal in Scotland.

After correspondence, it was determined that the issue would be dealt with at the start of the final hearing in June 2024, at which the respondent was represented by another barrister, Mr Mills. In his written application, the claimant relied upon section 6(1)(a) of the Employment Tribunals Act 1996, which provided that a person may be represented by “counsel or a solicitor”, which he took to mean in the Scottish context that the representative must hold a Scottish practising certificate from the Law Society of Scotland or be a Scottish advocate belonging to the Faculty of Advocates, referring to the terms of the Solicitors (Scotland) Act 1980.

The claimant further argued that the Tribunal was making a legal mistake by assuming that any lawyer from any jurisdiction or country can represent a party at an Employment Tribunal. He also produced an excerpt from an article which appeared in the Herald newspaper which concerned the question of whether an English barrister had a right of audience in the Court of Session.

For the respondent it was argued that the wording of section 6(1)(a) did not create limits as to jurisdiction. If Parliament had intended to limit the rights of audience to advocates when sitting in Scotland and barristers when in England, then this would have been specified in the legislation. Additionally, even if he and Mr Jackson did not fall within section 6(1)(a), they would nevertheless have rights of audience under section 6(1)(c), which covered any other person whom a party desired to represent them.

Lacks logic

In the Tribunal’s decision, Employment Judge Murphy said of the claimant’s case: “The issue is governed by section 6 of the ETA. Case law concerning rights of audience in the Court of Session is not relevant in the present context. The Solicitors (Scotland) Act 1980 is of peripheral relevance given neither Mr Mills nor Mr Jackson were English qualified solicitors. In any event, there is nothing in that Act which cuts across the terms of section 6 of the ETA.”

He continued: “The claimant’s argument was essentially that the words ‘qualified in Scotland in the case of Employment Tribunals sitting in Scotland or qualified in England and Wales in the case of Employment Tribunals sitting in England and Wales’ should implicitly be read into subsection 6(1)(a) to qualify the breadth of the category in that subsection. He said that if a representative was counsel or a solicitor qualified in any jurisdiction other than the country in which the Employment Tribunal was sitting then they would also be excluded from relying on categories 1(b) or 1(c) of section 6 because of the use of the word ‘or’ at the end of 1(b).”

Assessing the strength of that argument, EJ Murphy said: “We saw no basis to read additional words into the terms of section 6(1)(a) of the ETA to qualify its breadth. As Mr Mills pointed out, the draftsman could have used terminology which was specific and individual to the nations to which the ETA would apply by choosing the word barrister or advocate but specifically chose not to. The draftsman could have specified that qualification in the nation where the Employment Tribunal was sitting was required to fall within the category in subsection (a) but chose not to.”

He concluded: “Even if the claimant had persuaded us that the qualification he contended for should be read into section 6(1)(a), it is clear that Mr Jackson would have enjoyed a right of audience under section 6(1)(c). If an English barrister in Scotland is excluded from (a) because of the limitation the claimant says is implicit in that subsection then it follows that he would fall into the residual category (c) of ‘any other person’. The argument that (a) should be read with an implied nation-specific qualification for the purpose of determining if Mr Jackson is ‘counsel or a solicitor’, but that the same subsection (a) should be read without this qualification for the purposes of identifying whether he is ‘any other person’ in (c) lacks logic.”

The unanimous decision of the Tribunal was therefore to refuse the claimant’s application to strike out the respondent’s response in its entirety.