What's next for employment tribunals in Scotland?

In the 2014 Annual report, the President of Employment Tribunals (England and Wales) described the past year as a pressurised period with an ”inordinate and unprecedented amount of change”. Exactly what the future holds for the system is unclear, but change will continue to be the key theme.

Law Off Balance

The future of fees – north and south of the Border

In late August, Unison vowed to continue its challenge to the fees system which has caused much controversy since its inception in July 2013. It confirmed that it will continue to pursue its challenge to the fees, which has been climbing though the English courts, and will seek permission to appeal to the Supreme Court.

So far as Scotland is concerned, on 1 September the Scottish Government confirmed a commitment to abolish tribunal fees once it is “clear on how the transfers of powers and responsibilities will work”. Their programme also referred to their proposed consultation “on the shape of the services that can best support people’s access to employment justice as part of the transfer of the powers of the Employment Tribunals to Scotland”.

In the meantime, the Law Society of England and Wales has issued a recent discussion document that proposes, among other things, the abolition of the fees structure. Both it and the Law Society of Scotland have long raised concerns over barriers to justice presented by the fees, which commonly total £1200 to run a case such as unfair dismissal to a full hearing.

Other reform options

The rest of the English Law Society’s discussion paper is concerned with a number of reform proposals, some of them of an arguably radical nature which, it suggests, would help improve the system. It is not a government consultation, of course, but gives a temperature reading of the Law Society’s thinking on the issue south of the Border. How far Scotland’s employers, employees and other stakeholders should be concerned with the proposals is currently unclear, though it is inevitable at least that any future Scottish consultation will take cognisance of, if not be influenced by, the model deliberated by our English counterparts and the reaction to it.

The paper proposes a system whereby cases are dealt with at one of four levels, in line with their complexity and value. This would include a paper-based decision making level for the simplest claims; a “judicial inquisitorial approach” for the next level up; an emphasis on alternative dispute resolution options the third level, (at which the majority of claims would be considered); and a fourth level which would deal with employment matters currently dealt with by the civil courts such as restrictive covenants.

The most radical departures from current practice are perhaps the concept of paper based decision making with no parties present at level 1 and the suggestion that, in level 2 cases, parties would not be allowed to cross examine their opponents, with only the judge being empowered to make enquiries and extract evidence beyond the written witness statements. The suggestion that a judge could be allocated to give an “early neutral evaluation” of a case (but not decide it) is another strand to the proposals which would represent a sea change to the current system.

Watch this space

We will keep you updated on the consultation as reaction to it is reported. The paper serves as a good opportunity to provoke discussion around not only the options for reforming the system, but also what the reforms should be seeking to achieve. As such, it may be a platform for future debate not only south of the Border but in Scotland in due course too. There is currently no timescale available for the promised consultation in Scotland or the abolition of fees.

Get in touch

If you would like advice on any aspect of how these potential changes may affect you, how the current system works or concerning the different ADR options which may be available please a member of our employment team.