Employment tribunals and dispute resolution: key differences in Scotland and Northern Ireland
Scotland: The Scotland Act 2016, which was enacted following a recommendation by the Smith Commission, will devolve powers to the Scottish Parliament in respect of the operation and management of employment tribunals. While the timeframe for devolving these powers has not been finalised, the President of the Employment Tribunals in Scotland has proposed 2020 as a target date.
On 1 September 2015, the Scottish Government published its programme for Scotland 2015-16, which sets out how the Scottish Government intends to use the additional powers set out in the Scotland Act 2016.
In early 2016, the Scottish Government ran a consultation on the Transfer of specified functions of the employment tribunal to the first-tier tribunal for Scotland. The consultation sought views on the proposal to allow the first-tier tribunal to hear Scottish employment cases together with a number of cases that do not fit within that category but that have a sufficient link to Scotland and should, therefore, be heard in a Scottish tribunal. The consultation included the draft Scotland Act 1998 (Employment Tribunals) Order 201X. The draft Order illustrates the proposed approach in transferring specified functions of the employment tribunal to the Scottish tribunals. The draft Order is made as a consequence of clause 37 of the Scotland Bill, which allows for the transfer of tribunal functions (that relate to reserved matters and deal with Scottish cases) to a Scottish tribunal. Article 5 of the draft Order defines what will count as a "Scottish case" while art.8 allows cases to be transferred from the Scottish first-tier tribunal to the England and Wales jurisdiction if that is appropriate. While the draft Order does not deal with the Employment Appeal Tribunal (EAT), the Scottish Government envisages that there will be equivalent provisions for the EAT in relation to Scottish employment cases.
Northern Ireland: The Employment Act (Northern Ireland) 2016, which received Royal Assent on 22 April 2016, will align some of the employment laws in Northern Ireland with Great Britain. The Act contains provisions to introduce early conciliation by making it mandatory for prospective claimants to provide information about a prospective claim to the Labour Relations Agency to explore settlement prior to issuing the claim. Additionally, there are provisions for the President and Vice-President of industrial tribunals and the Fair Employment Tribunal, and any chairman of industrial tribunals, to be referred to as an employment judge. These provisions of the Employment Act (Northern Ireland) 2016 are not yet in force.
The Department for Employment and Learning in Northern Ireland (DELNI), whose functions and services have been transferred to the Department for the Economy (DfE) and the Department for Communities, commissioned a number of discrete projects that are being taken forward separately from the employment law review process that began in 2013. These projects, which have passed to the DfE, include a review of the current tribunal rules that takes account of the recommendations of Justice Underhill's review in Great Britain.
The DELNI's public consultation on Developing modern, efficient and effective employment tribunals closed on 25 September 2015. The consultation sought views on how to improve the tribunal service and the experience of users of the tribunal system, and the draft new rules and procedures for industrial tribunals and the Fair Employment Tribunal. The DfE will take this consultation forward.
Since 1 October 2004 there have been common employment tribunal rules of procedure for Scotland, England and Wales. Some minor variations in practice in Scottish tribunals have continued, as follows:
- The claimant will send the claim form (ET1) to the Central Office of Employment Tribunals for Scotland, which is based in Glasgow, rather than a Regional Office, although as in England and Wales, there is provision for online submission.
- Parties are required to disclose only the documents on which they intend to rely.
- Witness statements are generally not used; witnesses usually give their evidence orally. Witnesses are not permitted to attend the hearing before giving evidence.
- Closing submissions follow the order of the evidence.
- Tribunals tend not to split liability and remedy hearings so in nearly all cases the decision is reserved.
- Aggravated damages cannot be awarded. However, in serious cases of discrimination where aggravated damages are thought to be appropriate, the claimant may ask the tribunal to take this into account when deciding any award for injury to feelings.
- The President of the Employment Tribunals in Scotland has issued practice directions that apply only to tribunal proceedings in Scotland (on the Department for Justice website).
- Costs are referred to as expenses in Scotland.
- Legal Aid covers representation at employment tribunals in Scotland, although qualification is subject to strict financial means tests.
The Employment Appeal Tribunal (EAT) office in Edinburgh is responsible for administering appeals against decisions by Scottish employment tribunals. Appeals from the employment tribunal are heard by the EAT, appeals from the EAT are dealt with by the Court of Session, and appeals from the Court of Session proceed to the Supreme Court.
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2013/1237) apply to Scotland with a couple of minor modifications relating, among other things, to the jurisdiction of tribunals in Scotland (para.8(3) of sch.1 to the Regulations. The Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 (SI 1994/1624) permits tribunals to deal with claims for breach of contract that arise or are outstanding on termination of an employee's employment.
Discrimination and equal pay
The law relating to discrimination and equal pay claims is governed by the Equality Act 2010 in Scotland just as in England and Wales, with a few variations.
In relation to equal pay, there are some differences in the provisions relating to time limits for commencing proceedings and limits on arrears in pay between Scotland and England and Wales. With effect from 1 October 2010, the Equality Act 2010 replaced the Equal Pay Act 1970. The time limit for commencing proceedings in Scotland does not start to run until an employee is 16 (the age being 18 in England and Wales). In Scotland, the normal limit on arrears is five years from the commencement of proceedings with a maximum limit of 20 years applying to arrears in cases where the employer's actions prevented the employee from commencing proceedings or the employee was under 16 or incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000.
Interest on discrimination awards
Interest on discrimination awards currently accrues at the rate of 8%. This rate is set by reg.3(2) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803), and the Act of Sederunt (Interest on Sheriff Court Decrees or Extracts) 1993.
The President of the Employment Tribunals in Scotland issued the following Practice Directions, which remain in force: the provision of a list of documents 14 days before a tribunal hearing (Practice Direction 1) and sists (stays) for mediation (Practice Direction 2). The President also issued a Practice Direction addressing claims concerning the calculation unpaid holiday pay, which remains in force.
Acas Arbitration Scheme
The Acas Arbitration Scheme (Great Britain) Order 2004 introduced an Acas Arbitration Scheme in Scotland with effect from 6 April 2004.
All originating applications in the employment tribunal are sent to the Central Office of Employment Tribunals in Glasgow.
The industrial tribunals (as they are still known in Northern Ireland) are constituted under the Industrial Tribunals (Northern Ireland) Order 1996 (SI 1996/1291) (NI 18) and the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (SR 2005/150).
All claim forms (ET1 (NI)) for claims to an industrial tribunal claims and/or the Fair Employment Tribunal are sent to the Office of the Industrial Tribunals and Fair Employment Tribunal in Belfast, although there is provision for online submission. There is a prescribed form available for submitting an employer's response (ET3 (NI)).
Claimants in Northern Ireland are not required to obtain an early conciliation certificate or pay a fee prior to pursuing a claim in the tribunal, which contrasts with the position in the rest of the UK where mandatory requirements in relation to early conciliation were introduced on 6 May 2014 and tribunal fees were introduced on 29 July 2013.
The Fair Employment Tribunal hears discrimination claims on the grounds of religious belief or political opinion brought under the Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162) (NI 21) (which repealed and replaced in consolidated form the provisions of the Fair Employment (Northern Ireland) Act 1976 and Fair Employment (Northern Ireland) Act 1989). The procedure in the Fair Employment Tribunal is governed by the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (SR 2005/151).
In contrast to the rest of the UK where the statutory questionnaire procedure was repealed with effect from 6 April 2014, the questionnaire procedure is still in operation in Northern Ireland and may be used in relation to all of the prohibited grounds and equal pay cases.
Appeals from the industrial tribunal and Fair Employment Tribunal are heard by the Court of Appeal in Northern Ireland and appeals from the Court of Appeal proceed to the Supreme Court (there is no Employment Appeal Tribunal in Northern Ireland).
There is no Acas Arbitration Scheme in Northern Ireland, but the Labour Relations Agency introduced a scheme very similar to the Acas scheme. Under a scheme that came into force on 27 September 2012, the option of voluntary binding arbitration as an alternative to bringing a claim to an industrial tribunal was extended beyond the remit of the previous scheme for unfair dismissal and flexible working claims to cover claims under most employment rights jurisdictions, including: the handling of redundancies and protective awards, redundancy payments, discrimination and equal pay.
Under the scheme, an arbitrator's decision is binding in law and the matter cannot be pursued to a tribunal. However, a decision can be challenged on the ground of substantive jurisdiction or serious irregularity, or appealed on a question of EC law or the application of the Human Rights Act 1998. Challenges and appeals are made to the High Court or the county court. The Labour Relations Agency Arbitration Scheme Order (Northern Ireland) 2012 (SR 2012/301) defines and governs how the scheme operates, while the Labour Relations Agency Arbitration Scheme (Jurisdiction) Order (Northern Ireland) 2012 (SR 2012/302) stipulates the employment rights jurisdictions to which the scheme applies.