Employment tribunals and dispute resolution: key differences in Scotland and Northern Ireland

Updating author: Tina McKevitt, consultant editor (Scotland): Gillian MacLellan, consultant editor (Northern Ireland): Andrew Spratt

Future developments

Scotland: The administration of Scottish employment cases is due to transfer from Her Majesty's Courts and Tribunals Service to the Scottish Courts and Tribunals Service. According to the latter's Corporate plan 2017-2020, the target date for the transfer is early 2020.

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, seeking views on proposals to allow the first-tier tribunal to hear Scottish employment cases. 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 s.39 of the Scotland Act 2016, 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.

In an update to the consultation dated 4 December 2017, the Scottish Government stated that Scottish ministers are unable to respond to the consultation as a further draft Order from the UK Government concerning employment tribunals and draft provisions relating to the Employment Appeal Tribunal, are awaited.

Scotland

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.
  • 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.

Case management

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.

Northern Ireland

The industrial tribunals (as they are still known in Northern Ireland) are constituted under the Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020 (SR 2020/3).

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 a respondent's response (ET3 (NI)).

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).

Arbitration

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.