Legal expert warns of ‘forum shopping’ if Welsh and English staff seek cheaper justice
The Scottish government has promised to scrap employment tribunal fees north of the border, using new powers included in the Scotland Bill.
The announcement was included in the 2015-16 Programme for Government, entitled ‘A Stronger Scotland’, published this week.
As part of a commitment to “create a fairer country”, Scottish first minister Nicola Sturgeon plans to “abolish fees for employment tribunals – ensuring that employees have a fair opportunity to have their case heard”.
The statement said: “We will abolish fees for employment tribunals, when we are clear on how the transfer of powers and responsibilities will work. We will consult on the shape of services that can best support people’s access to employment justice as part of the transfer of the powers for employment tribunals to Scotland.”
Many employee bodies criticised the original introduction of fees, including Citizens Advice Scotland (CAS), which said the system was “exploiting workers” and had “altered the balance of power at work”.
Following the Holyrood announcement, Keith Dryburgh, CAS policy manager, said: “This is an issue we have been fighting hard to highlight. Citizens Advice evidence has shown clearly that [fees] have been an active barrier preventing many Scots from challenging unfair treatment at work.”
But Stuart Neilson, a Glasgow-based employment partner at law firm Pinsent Masons, said that while employee groups and unions would welcome the Scottish government’s commitment, many businesses “will be less than impressed”.
“By in-effect creating different legal positions north and south of the border, there is a risk that some businesses will put Scotland and the UK into the ‘too difficult’ box,” he said.
“There is also a real risk of ‘forum shopping’,” he added.
“As the rules currently stand if any employer has a place of business in Scotland, claims from UK employees can potentially be brought there irrespective of where the subject of the grievance took place or the employee actually worked. If there is an increase of claims lodged in Scotland, cost of administration to the public purse will increase accordingly. That may lead to a revision of the rules around jurisdiction”.
Neilson said the Scottish government’s pledge ignored the wants and needs of employers.
“Many of the businesses we speak to actually feel fees have a place but could be reduced to ensure access to justice. Unfortunately it would appear that the option of reduced fees has been excluded even before consultation begins,” he said.
Last month, trade union Unison lost its third legal challenge to overturn the introduction of tribunal fees.
The UK government’s review of the employment tribunal system is expected to be completed later this year.