Last week Victoria Weldon at the Herald reported that plans to devolve the administration of Employment Tribunals has been further delayed and is not expected until at least 2024.
This is hugely disappointing, particularly for those of us who represent Claimants and see the devolution of even the administrative part of this system as an opportunity for change.
As a trip down memory lane, the transfer of these powers was first considered, post the 2014 Independence Referendum by the Smith Commission in 2014-15. At that point, the big political push for this to be done was the fact that the Tories had introduced fees to lodge Employment Tribunal claims. This led to a plummet in case numbers and workers across the UK simply priced out of justice.
However, in 2017 the UK Supreme Court in Unison v Lord Chancellor ruled that the fee regime was unlawful and it was removed by the Government with immediate effect. Since then no fees have been payable to lodge an Employment Tribunal claim or continue the matter to a hearing.
However, for many of us, the devolution of administrative powers was about much more than fees. The opportunity to consider a proper costs regime, widening access to justice, and the potential to create an Equality Court which could consider multiple class actions as well as the education, goods and services claims. The latter, which currently languish unenthusiastically in the Sheriff Court system, are rarely used provisions designed to protect the rights for those discriminated against while accessing education, goods and services.
In addition, as the Citizens Advice Bureau has long pointed out, even if you succeed in a claim against your employer and are awarded compensation it is very difficult, in Scotland, to ensure that you actually receive your compensation. If an employer decides not to pay what is owed or is evasive about what money the business has, a whole separate process via the Sheriff Court required to secure payment of this money.
This matter has recently been considered by the Supreme Court in the case of Anwar v Advocate General for Scotland. By way of contribution to that case, Alice Bowman, during her time as a Trainee Solicitor at Thompsons, gave affidavit evidence - as the only example of someone who has tried to enforce an Employment Tribunal judgment via the civil courts - regarding how, without expert legal knowledge and the funding of a trades union access to justice would have been denied. Having enforced a judgment through the system in England and Wales I know first-hand how much easier it is than the Scottish system and requires a lot less time and expense incurred by the party owed the money.
This is just one small example which would help increase access to justice in Scotland were powers devolved to Scotland. It would ensure that employers pay when they have committed a wrong.
The Scottish Government argue that the Scottish Parliament requires full devolution of substantive employment law to make any real change, and that may very well be the case. However, that is not to say that significant changes cannot be made with this proposed transfer of powers.
In addition, these powers can be used for exactly the purpose of Home Rule in the first place, to protect Scotland from the excesses of a Tory Government at Westminster.
Now that Brexit is done – or nearly done – no one should be in any doubt that the Tories will once again have Employment Law in their sights. Not only can they now change much of Employment Law without fear or running into the European Court of Justice they can also take the less controversial route – chipping away at rights via the backdoor – while playing to their big business backers.
Make no mistake, the Supreme Court in the Unison case did not say all fees were unlawful. It was the level of fees and the way they were applied to the Claimant side only that made them particular egregious. It will be considered unfinished business for many in the Conservative Party to ensure that these fees are brought back in, but under another guise.
In these circumstances Scotland will require to follow suit. This is hugely frustrating when it could be avoided if the Scottish Government were willing to fight for these powers, and take responsibilities for these matters, now.
The lack of prioritisation given to the Employment Tribunal system, where real change could and should be made, ought to be compared with ongoing pronouncements about “fair work” and “guidance” issued by the Scottish Government to employers. These have no enforceability and make no meaningful difference for workers in Scotland. Simply relying on the goodwill and decency of employers to comply with best practice is rarely a strategy that has achieved much for working people. The devolution of these powers had the potential to make a real difference and that is why our Government should fight for them now.
Blog by Jillian Merchant, Associate Employment Solicitor
