The Scottish Parliament’s proposals to transfer the Employment Tribunal to the Scottish First Tier have been knocked back was the Scottish Council of Employment Judges, law firms and unions.
Following the Scottish Independence Referendum ‘No Vote’ result, the Smith Commission was established to deliver on pre-referendum promises to devolve more power to Scotland.
The Smith Commission report recommended devolving powers to the Scottish Parliament in relation to employment tribunals.
“All powers over the management and operation of all reserved tribunals” should be transferred to the Scottish Parliament with limited exceptions (the Special Immigration Appeals Commission and the Proscribed Organisations Appeals Commission). Para 63
In January 2015 the UK Government published a paper “Scotland in the United Kingdom: An Enduring Settlement” and the Scottish Parliament published a consultation paper “The Scotland Bill – Consultation on Draft Order in Council for The Transfer of Specified Functions of the Employment Tribunal to the First-tier Tribunal for Scotland”.
Responses to Consultation
29 responses have been lodged from the likes of Burness Paull, Law Society of Scotland, Pinsent Masons LLP, MacRoberts LLP, Unite, Unison, Scottish Discrimination Law Association, Equality and Human Rights Commission, CIPD, Employment Lawyers Association and Council of Employment Judges.
Scottish Employment Judges
The unanimous response from all Employment Judges currently appointed to Employment Tribunals (Scotland) was critical of the proposals.
“Employment Tribunals (Scotland) already has a strong, recognised “brand… that “brand” recognition would be lost if we become part of the First Tier Tribunal for Scotland.”
“Furthermore the “downgrading” of the forum, and those who adjudicate in such cases, is likely to increase the difficulties associated with “tackling the inequalities in Scottish society”. If the First Tier Tribunal for Scotland Employment Chamber (not a very memorable name) is seen as second rate, compared to what was in place previously and to Employment Tribunals (England and Wales), then people will be less likely to pursue their claims before it (assuming they get to the stage of realising that is the body they need to utilise) as they will have reduced confidence that the system is able to deliver justice. This would be a justified concern if those who sit as legal members are less experienced and well qualified than the current group of Employment Judges – given what is proposed that may well be the outcome for people in Scotland who seek judicial determination of employment disputes.”
The Employment Judges added “What is proposed, if implemented, will almost certainly reduce the role that Scotland currently plays in influencing this area of reserved law, which is particularly important in connection with the Scottish Government’s objective of achieving a “fair work” culture”.
The Judges proposed that the Scottish Employment Tribunals need not be transferred to another body. Rather, only the powers in connection with the operation of the tribunal (including in connection with fee charging), and the leadership of its judiciary, would need to be transferred to effect devolution and not the powers in connection with exercising the legal jurisdiction of the tribunal.
Pinsent Masons said “What is proposed fails to recognise the highly specialist and legally complex work dealt with in Employment Tribunals (Scotland). “
MacRoberts LLP commented “[The proposal] will seriously undermine the quality and efficiency of determination of employment disputes in Scotland”
Employer and Employee organisations
CIPD said “We consider that the Employment Tribunal should remain a separate pillar” and “the proposed move to the First Tier Tribunal is regressive and will create a perception that the adjudication of employment disputes is superior in England where cases will continue to be considered by employment judges”
Unite said “Scotland should take the opportunity to keep a stand-alone Employment Tribunal service”.