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Devolution: could this be the end for tribunal fees in Scotland?

BY Daniel Gorry
Employment Law & HR
BG Purple

It is no secret that the introduction of employment tribunal fees in July 2013 has been a matter of controversy.

According to figures released by the Ministry of Justice, there was an 86% drop in the number of claims in the UK between April-June 2013 and April-June 2014. There has been significant doubt as to whether all of the claims which would have otherwise been lodged were indeed ‘spurious’ as Secretary of State for Business, Innovation and Skills Vince Cable had suspected. In fact, there has been a visible body of opinion which suggests that the introduction of tribunal fees has had a negative impact on access to justice, with UNISON pursuing two – albeit unsuccessful – Judicial Reviews to this end. 

It is also no secret that recent times have presented significant potential for change in the political landscape of the UK and Scotland in particular. The Independence Referendum ignited much discussion as to the future of Scotland within the UK, and a real desire for increased devolution and Home Rule began to emerge.  

But what does this mean for employment law? 

The Smith Commission produced a report following the referendum which put forward a proposal for ‘all powers over the management and operation of all reserved tribunals (including administrative, judicial and legislative powers) to be devolved to the Scottish Parliament’. This proposal has now been incorporated into ‘Scotland in the United Kingdom: an Enduring Settlement’; a UK Government publication which includes some draft clauses which will form part of a new Scotland Bill. In effect, the Bill will provide a mechanism for the transfer of functions from reserved tribunals to Scottish tribunals. The Scottish Parliament will be able to exercise powers relating to those tribunals, including decisions concerning rules of procedure, membership, administration and funding. Potentially therefore, the Scottish Parliament could reduce or even remove tribunal fees altogether. 

The current Scottish Government has previously made its opposition to tribunal fees clear, labelling them as a potential ‘barrier to justice’ prior to their implementation.  It is a real possibility therefore, that tribunal fees could become a thing of the past in Scotland in the coming years. This raises significant questions as to fairness and access to justice: can we have a UK-wide system of employment law with only those north of the border able to raise a claim thereunder free of charge? The Bill is in its infancy – it is yet to be seen whether these proposals will materialise and employment tribunals will become a matter for Holyrood to consider. It seems, however, that the potential challenges facing tribunal fees are far from over and this is an issue which could rear its head in the not too distant future.

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