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Contracts of employment: key differences in Scotland and Northern Ireland

Updating author: Jeremy Fitzgibbon, consultant editor (Scotland): Gillian MacLellan, consultant editor (Northern Ireland): Andrew Spratt

Future developments

Scotland: The Scottish Law Commission has consulted on a draft Contract (Formation) (Scotland) Bill, which, if and when enacted, will provide a statutory basis for determining whether or not a contract is formed, replacing certain aspects of the current common law. Under provisions in the Bill, a contract will be formed if the parties intend an agreement to have legal effect and where it can be given legal effect taking into account other statutory requirements. The consultation closed on 3 November 2017.

The Contract (Third Party Rights) (Scotland) Act 2017 received Royal Assent on 30 October 2017. The Act allow parties to a contract governed by Scottish law to confer rights on third parties, replacing the common law doctrine of "jus quaesitum tertio". Provisions in the Act are similar to those in the Contracts (Rights of Third Parties) Act 1999, which applies in England and Wales. No commencement date for the relevant provisions in the 2017 Act has yet been announced. The Act is not retrospective and will not apply to contracts entered into prior to the relevant provisions coming into force, unless the contract provides otherwise.

Northern Ireland: Under provisions in the Employment Act (Northern Ireland) 2016, the Government may make regulations to prevent abuses in connection with the use of: zero-hours contracts; non-contractual zero hours arrangements; or workers' contracts, of a kind to be specified in the regulations. The relevant regulations are yet to be published.

Scotland

The common law contract of employment rules in England and Wales and Scotland are essentially the same and decisions in one jurisdiction are used as persuasive precedents in another.