In this post Brexit (vote) world, much is still uncertain. A significant percentage of employment law has its origins in Europe, but as per our blog on Brexit there has, of course, been no immediate change to employment law and the timescales for Brexit-related future change will be measured in years, not months.
However, there is separate uncertainty about the future of the employment tribunal system in both Scotland and England. We've touched on this before but, almost a year later, we cannot yet say with any certainty what the way ahead will be.
We do know that the Scottish tribunal system (including employment tribunals) is now devolved. We also know that the SNP Government is opposed to the current fee regime in the employment tribunals. What we don't know is when any removal of fees will happen, or what the scope of other changes to the employment tribunal system will be.
Potential changes to employment tribunal procedure in England and Wales
Meantime, in England, Lord Justice Briggs has published his final report on the review of the civil court system in England and Wales. Whilst much of the report does not - for the purposes of this blog – concern us, Lord Justice Briggs also considered options for the future of the employment tribunals in England and Wales.
Whilst no firm recommendations were made, it is interesting to note that it would appear that the preference would be to align the tribunal system with the civil courts, rather than maintain its free standing position or to converge with the tribunal service (as is potentially the future for Scotland).
There could be a risk that if the employment tribunal is subsumed in the English civil court system, there is a bleeding of some of the civil court procedure into the employment tribunal. Presently, the employment tribunal process and system in England and Scotland is substantially the same, albeit with some relatively minor differences, such as the prevalence of witness statements in virtually all English tribunal cases, unlike in Scotland. Given the significant differences between the civil court systems in England and Scotland, if there is this adoption (whether intentional or as a by-product of the integration) of English court procedure, this may mark a substantial departure in the two processes.
Employment Appeal Tribunal proposals
Another observation was the Employment Appeal Tribunal, which presently only has appellate jurisdiction, could be given jurisdiction for first instance high complexity cases. Parties in Scottish tribunals currently have a right to appeal to the Employment Appeal Tribunal (sitting in Edinburgh, but the same entity as in England) but this change to jurisdiction would not necessarily be followed in Scotland, meaning that there would also be a variation between jurisdictions as to what cases an employment tribunal could hear. How the appellate system would, or could, function is still unclear.
Within these changes, the employment tribunal itself may be reconstituted and renamed, to become the Employment and Equalities Court.
This could mean that Scotland has an employment tribunal system housed within the overall tribunal system (including the Mental Health and Lands Tribunals), with no fee regime in place, and England and Wales a completely separate Employment and Equalities Court system, with the Employment Appeal Tribunal (if it still exists) having divergent powers in each jurisdiction.
Although, at this stage, this is only the outcome of a review and there are no firm legislative proposals, it is clear that some significant changes to the tribunal system that we are familiar with are envisaged. This could have far reaching effects to the administration of, and access to, justice. We will continue to keep our blog updated when we get more clarity – in the meantime, if you have any queries, please contact one of our employment team.
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If you want to discuss holiday pay and the implications of the recent case law for your business, please contact one of our employment team.