CONSULTATION RESPONSE BY THOMPSONS SOLICITORS SCOTLAND

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1 CONSULTATION RESPONSE BY THOMPSONS SOLICITORS SCOTLAND SCOTTISH GOVERNMENT CONSULTATION ON THE DRAFT ORDER IN COUNCIL FOR THE TRANSFER OF SPECIFIED FUNCTIONS OF THE EMPLOYMENT TRIBUNAL TO THE FIRST TIER TRIBUNAL FOR SCOTLAND. 1

2 INTRODUCTION Thompsons Solicitors are a specialist employment rights law firm. We represent the vast majority of Scotland s Trade Unions and their members in relation to employment and collective rights disputes. Our solicitors are recognised experts in their fields and the Employments Rights Unit covers the full spectrum of employment disputes including equalities, holiday pay, contractual disputes, certification officer and collective disputes. Thompsons Solicitors only act for claimants in employment rights matters. Our extensive practical knowledge and experience of the Employment Tribunal system in Scotland means that we are in an almost unique position to comment and provide important feedback in relation to this very important issue. Employment Tribunal reform has been a matter of significant importance to all of our Trade Union clients for a number of years. The introduction of Employment Tribunal fees provides irrefutable evidence that there is a direct link between the Employment Tribunal system, its rules and processes and access to justice. There is, in turn, a clear link between access to justice in this context and ensuring that Scottish people have access to and benefit from fair work. Fair work is a key priority for the Scottish Government and the entire Trade Union movement. This consultation is a key component of the fair work initiative. Overarching View of the Draft Order Before responding to the specific questions in the consultation we consider it important to provide our views on the overall approach of the Draft Order in Council. In short we do not believe that the devolution of the Employment Tribunal system provided for in the Scotland Bill taken together with the Draft Order in Council meets the pledge for further devolution signed by other leaders of the Labour, Liberal and Conservative Party prior to the Scottish Referendum. At best, the current proposals represent the lightest form of devolution of the Employment Tribunal system. This is a significant opportunity lost. Politically, we believe that the current proposal will create more problem than it solves and, other than Tribunal fees, it fails to provide any form of democratic control of the Employment Tribunal system to Scotland via the appropriate political organs the Scottish Parliament and Scottish Government. 2

3 Indeed the Order seems to focus really on one issue what constitutes the Scottish UK. That is even seen in the way that the Consultation questions have been framed. The entire consultation is centred entirely upon the issue of Scottish cases. This, in many ways, from our perspective, and the perspective of the Trade Unions that we represent, is a secondary issue and there are far more fundamental issues which require to be addressed. The Fundamental Issue The Trade Union movement have consistently argued that the process of devolving the Employment Tribunal Service to Scotland must involve more than simply providing the Scottish Parliament with powers over Employment Tribunal lodging fees. The process must provide the Scottish Parliament with the power to entirely rethink and reshape the Employment Tribunal process with only fairly loose and narrow strictures imposed by Westminster. There are different views within the Trade Union movement as to what a new Employment Tribunal system should look like. However, the only way that any effective change, and any proposed model may be introduced, is if among other powers the Scottish Parliament has the power over recovery of legal costs and legal awards of expenses. Currently section 64 of the Tribunals (Scotland) Act 2014 is not covered by the Order in Council and is therefore not devolved in any way Scotland has not been provided with any power over awards of legal expenses. This is a significant failure in the current draft proposal. The current draft offer gives limited powers to the Court of Session to make certain rules as to how Tribunals can be conducted. Those powers are handed directly to the Court of Session, by Westminster, entirely bypassing any supervision or direction of the Scottish Parliament. It may be suggested that this mirrors the current process in relation to the court rules in terms of the Scottish Civil Justice Council and Criminal Assistance Act 2013 and the Court Reform (Scotland) Act That however is incorrect. The difference in relation to court rules is that the Scottish Parliament retains the power to rethink and reshape the court system and court processes in the future and also retains power to give direction on aspects of Court rules. The same overarching powers in relation to Tribunal Rules must be devolved to the Scottish Parliament. 3

4 Response by Thompsons Solicitors to the Scottish Government Consultation on the Draft Order in Council for the Transfer of Specified Functions of the Employment Tribunal to the First Tier Tribunal for Scotland. Question 1: Do you consider that the provisions in article 5 of the draft Order adequately reflect what is a Scottish case? Yes. However, the issue of mass claims against an employer who has workplaces both north and south of the border requires to be addressed. At present if a union wishes to bring a multiple claim against a UK wide organisation it is possible for this case to be heard in either Scotland or England to allow the entirety of the claim to be heard to together. The provisions, as currently drafted, mean that those Claimants in Scotland would be unable to have their claims heard with the rest of their colleagues in England as their case would meet the definition of a Scottish case and therefore, under article 7, cannot be a concurrent case. This means that the Tribunal system, across the UK, and the union bringing the claim will require to run two cases, have two sets of hearings and two sets of claims etc. It is double the work, cost and time. This is not beneficial to anyone and does not make for efficient running of the ET system. In order to resolve this section 8 of the Employment Tribunal Rules 2013 should be inserted into the Order in Council and current sections 7 and 8 be deleted Question 2: Do you feel that the provisions in article 7 appropriately define those cases that have a sufficient connection to Scotland? Yes. However, the issue of wholly and mainly means that the test for hearing a case in Scotland is higher than it currently is. The test under rule 8 of the Employment Tribunal rules 2013 state that one or more of the acts or omissions complained of took place in Scotland. If the current definition continues it means that those individuals falling into this category may have more of a hurdle in accessing justice than they would currently, or indeed they would if they lived in England and Wales. 4

5 In order to resolve this section 8 of the Employment Tribunal Rules 2013 should be inserted into the Order in Council and current sections 7 and 8 be deleted. This would also resolve the issue raised in question 1. Questions 3: Are you content with the draft Order s other provisions? No. From an access to justice perspective there are several issues with the proposed Order in Council: The current Order does not provide any power in relation to awards of expenses to the Scottish Ministers. It is beyond any doubt that there is a direct link between Tribunal rules and processes and access to justice. The clearest example of this is found in the introduction of Employment Tribunal lodging fees where the number of applications to the Employment Tribunal Service reduced dramatically following the introduction of fees. Tribunal fees is one issue that the Scottish Parliament will no doubt wish to address. There are however various other important issues in relation to the Employment Tribunal process and rules which do have an impact on access to justice. It is essential that the Scottish Parliament have the widest legislative powers over issues that impact on access to justice. At the heart of matters relating to access to justice is the ability to introduce measures in relation to awards of expenses. The current order (by omitting Section 64 of the Tribunal (Scotland) Act 2014) reserves that issue entirely to Westminster. Neither the Court of Session nor the Scottish Ministers have any power over awards of expenses. The overarching approach of the Employment Tribunals to awards of expenses is political matter. It is a power which therefore ought to rest with the appropriate democratically elected body. In this context that is the Scottish Parliament. This end could be achieved by either Amending Clause 9 of the Order to provide the Scottish Ministers with powers directly under the 1996 Act (with the additional power to delegate certain rule making to the Court of Session by statutory instrument) or 5

6 At least provide the Scottish Ministers shall have powers under Section 64 of the 2014 Act. The power over Tribunal rules under the 2014 Act lie with the Court of Session by Act of Sederunt. This power is directly delegated under the Order by the Secretary of State and not the Scottish Minsters Therefore the Scottish Parliament have no powers over the rules of the Employment Tribunal. This effectively denies the elected Scottish Parliament the opportunity to develop procedural rules for Scottish Employment Tribunals now, or at any point in the future. The way the Order is drafted means that even if, in the future, the Scottish Government wished to take back the powers over rule making from the Lord President to themselves they would be unable to do so. This would require another Order in Council passed by Westminster. To resolve this, it is suggested that the rules of procedure are devolved to Scottish Ministers. If, in the future and after consultation with Employment Tribunal users, Ministers wish to pass these powers to the Lord President this can be done via regulations and/or further Scottish Parliamentary legislation. Further, there is a democratic deficit in the current proposals that disadvantage Scottish users when compared with England and Wales. It is highly doubtful that placing control of rules of procedure for devolved Employment Tribunals within the powers of the Lord President would result in any opportunities to make progressive changes towards how Employment Tribunals operate in Scotland. This would include any consideration of returning to having the involvement of lay members (the industrial jury) in unfair dismissal cases, the issues of expenses for parties and witnesses and repealing other attacks on the Employment Tribunal system in recent years. These rules have a material impact on the outcome of disputes. The balance they strike between the interests of employer and employee should therefore be the subject of political oversight. This raises questions as to consistency in the way Tribunals would operate. Under the proposals, changes in rules of procedure in England and Wales would continue to be political decisions made by the Lord Chancellor and/or a Government Minister, whereas in Scotland any proposed changes would be judicially driven. While there has been limited success in influencing the former Lord President on civil court reform this is not likely to be the easiest or most democratic method of informing public policy in this area. 6

7 The move to the First Tier Tribunal There are further issues with the incorporation of the Scottish Employment Tribunals into the First Tier Tribunal. These can be summarised as follows: A stand-alone Employment Tribunal service will disappear Hearings will no longer be heard by specialist judges If Employment Tribunals are taken into the general work of the Scottish Tribunal Service than there is a real threat to the specialism of both judicial and lay members with members sitting on hearing on Tribunals dealing with matters other than employment disputes. The only current Tribunal dealing with reserved matters, the Social Entitlement (Social Security and Child Support Appeals) has its own dedicated Chamber with its own President but the current Order in Council does not make it clear if this is to be the case for Employment Tribunals. Currently Employment Tribunals (Scotland), together with its equivalent in England and Wales as well as the Employment Appeal Tribunal (EAT) are a separate pillar, sitting outside of the First Tier and Upper Tribunals created by the Tribunals, Courts and Enforcement Act This arrangement reflected the fact that Employment Tribunals are a forum distinct from other Tribunals. They are party v party, private law, adversarial forums which operate very similarly to the civil courts. It was also a reflection of the fact that a highly specialist judiciary has been established due to the need to be able to conduct lengthy proofs on matters of increasing complexity. Further, it was an appreciation that over the years and there is an increasingly raft of legislation in relation to Employment law from both the UK courts and the European Court of Justice meaning that employment law has become vastly more complex than it was when the Industrial Tribunals system was first devised. In addition, a recent report commissioned in England and Wales (The Briggs Report) suggested that there is an ever increasing view that the Employment Tribunals should become part of an Employment and Equalities Court. It may be that in England and Wales, Employment Tribunals will, in time, move to become a division of the Civil Court and should that happen then it may well make sense for Scotland to be on a par and for Scottish Employment Tribunals to be part of the Civil justice system for Scotland. In that way employment and equality matters could be dealt with in the Sheriff Court in a specialised court that covers Equality Act goods and services cases as well as existing jurisdictions. 7

8 Question 4: Do you have any further comments you wish to make on the opportunities provided by qualified transfer of the Employment Tribunals to Scotland? The issues of powers of rules and procedure and the concerns over the First Tier Tribunal could be resolved in the following ways: The Employment Tribunal (Scotland) already exists The Scotland Bill at clause 37 envisages that functions of currently reserved Tribunals (i.e. those Tribunals that deal with law reserved to the UK Parliament) can be transferred to a Scottish Tribunal where the functions are to be exercised in relation to Scottish cases. The biggest reserved Tribunals operating in Scotland are First Tier (Social Entitlement) (dealing with social security appeals etc), First Tier (Immigration and Asylum) and Employment Tribunals (Scotland). However, the Employment Tribunal is different because it is already a free standing entity with a specific Scottish jurisdiction. Social Entitlement is a Great Britain wide Tribunal and Immigration and Asylum is United Kingdom wide. This is an important distinction because it means that the Employment Tribunals in Scotland can already be described as a Scottish Tribunal. It does not need to be detached from a Great Britain or United Kingdom wide judicial body. It follows that it does not need to be transferred into a Scottish Tribunal at all because it is already operating on that basis. The easiest and least disruptive course would be to keep Employment Tribunals (Scotland) in its current format as a free standing Tribunal with Employment Judges, as now, rather than legal members. Employment Tribunals in Scotland would still come under the Employment Tribunals Act Power could be transferred from the UK Government Department Ministers currently responsible (the Secretary of State for Business, Innovation and Skills and the Lord Chancellor) to Scottish Ministers. The importance of this is that Employment Tribunals in Scotland would still be so called which would minimise the legislative disruption involved in shifting them into the First Tier Tribunal for Scotland. Furthermore if Employment Tribunals are kept separate then it is easier to detach that separate entity and move it across into the Sheriff Court as a specialist employment and 8

9 equality division. This could happen at the same time (if it does happen) that a similar change goes ahead in England and Wales (as per the Briggs Review) thereby keeping the employment law adjudication process on a par north and south of the border. This outcome can be achieved fairly simply by amending the Order in Counsel and the Employment Tribunals Act The Order in Council would specify the Tribunal for the purpose of Schedule 5 of the 1998 Act as the Tribunal established by the Scottish Ministers under Section (1A) of the 1996 Act. In turn the 1996 would be amended to add a new Section 1 (1A) empowering the Scottish Ministers by regulation to make provision for the establishment of Tribunals in Scotland to be known as Scottish Employment Tribunals. 9

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