The Scotland Bill – Consultation on Draft Order in Council for The Transfer of Specified Functions of the Employment Tribunal to the First-tier Tribunal for Scotland

Yes

Yes

No. In my view the proposed transfer of the Employment Tribunal (Scotland) (ET(S)) to the First-Tier Tribunal for Scotland (FTTS) is unnecessary and is likely to be the cause of confusion and inconsistency in service provision for potential litigants, particularly those who are unrepresented. Furthermore, the resulting change in status of the Scottish Employment Judges, which will distinguish them from their counterparts in England and Wales despite the fact that they will continue to do identical work, raises considerable concerns in relation to the preservation of specialised knowledge and expertise as well as undermining the guarantee of judicial independence. Furthermore, rather than meeting the policy aims of the Scottish Government as set out in its consultation document ‘The Scotland Bill – Consultation on Draft Order in Council for The Transfer of Specified Functions of the Employment Tribunal to the First-tier Tribunal for Scotland’, the proposed transfer is likely to lead to greater inequalities in service provision by making it more difficult for those who lack the resources to pay for legal advice and representation to access and use the Employment Tribunal (ET) in Scotland.
I will elaborate on each of these points in turn but first it may be helpful to provide some background information relevant to my response which is based on experience and expertise acquired in my professional capacity as Professor of Labour Law at the University of Strathclyde’s Law School. Over the past 4 years I have led a UK-wide research project entitled ‘Citizens Advice Bureaux and Employment Disputes’ which explores the experiences and perceptions of claimants to the ET by using a case-tracking methodology to collect longitudinal data relating to each individual participant. The 156 participants in this research were recruited through a network of Citizens Advice Bureaux in Scotland, England and Northern Ireland. As such, these potential claimants represent a particular constituency, namely those who cannot generally afford to pay for legal advice and representation and who are not able to access such support through other means, for example through trade union membership. They are often the unheard voices in consultations such as this. For reasons of legitimate expectation I hope that the Scottish Government will incorporate the views and experiences of such users, which are distinct from other users such as solicitors and others with specialist knowledge and experience of the courts and tribunals, and assess the impact on their needs before any substantial changes are made to the current system.
I will refer to this research in my response below. Further details are available here: http://www.bristol.ac.uk/law/research/centres-themes/aanslc/cab-project/
Effects of the Proposal on Scottish Claimants to the ET:
The proposed transfer of the ET(S) to the FTTS appears to be rationalised on the basis that there needs to be a change in status from what is currently a reserved tribunal so that it can become a devolved tribunal alongside the other devolved tribunals. However, this is misleading as it overlooks the ET(S)’s current unique status as a Scottish Tribunal which, along with its counterpart in England and Wales and the Employment Appeal Tribunal, comprises a separate pillar within the Courts and Tribunal Service. As such it is already administratively different from the other devolved tribunals and operates under the current reserved arrangements as a Scottish Tribunal, having its own jurisdiction in accordance with the definition provided in clause 39 of the Scotland Bill 2016. This status reflects the distinct nature of the ET’s party to party adversarial approach which, despite its name, means it has more in common with the civil courts than with the administrative tribunals which populate the first tier. The private law proceedings and complex nature of employment law, which draws on European Union as well as domestic law, require a specialist judiciary for consistent and reliable adjudication. The current complement of Scottish ET judges have been recruited from among the most talented and experienced practicing employment law specialists over a considerable period of time. I am strongly of the opinion that one of the primary aims of any reorganisation of the ET(S) should be their retention and that current arrangements relating to their terms and conditions should be preserved in order to guarantee effective succession planning. My view is based on research findings relating to the experiences of claimants to the ET. The examples used below are taken from real life accounts. All names have been changed.
The complexity of employment law and the difficulty in navigating the ET system are recognised by claimants such as those in our research. In fact these aspects are identified as substantial barriers to their accessing the ET system when seeking resolution of an employment dispute. Our research followed 156 individuals who presented at CABx seeking advice for employment problems which were prima facie deemed to be viable ET claims. Of those, only 57 submitted an ET1. From that number, 6 paid for legal advice and representation, 19 were provided with free legal representation through the CAB, 14 were provided with lay representation by the CAB, and 18 were unrepresented. One striking aspect related to the variety of sources that those with either low level or no formal support accessed and relied upon when seeking information about the ET. Many drew on information available on the internet, although not always necessarily from reliable sources. Some participants used the websites of no win no fee lawyers, the more unscrupulous of whom might tend to obfuscate the process rather than illuminate it so that potential clients feel compelled to pay for representation.
Caroline, who has a high level of education received some CAB support and drew upon her social networks for assistance and information, commented about the lack of user friendliness of the system for those without legal representation.
“For someone who hasn’t got really much legal advice on it or hasn’t got someone there to turn to 24/7, being paid to be there 24/7, it’s really hard to kind of interpret what was being asked of you … I think, in that sense, things could be a little bit more user friendly.”
In their quest for support and advice, such individuals are likely to rely on internet resources and informal social networks, including friends and family members who have been through the ET system, and who are likely to be based in England or Wales as well as in Scotland.
The proposed changes to the name and structure of the ET(S) are, therefore, likely to cause particular difficulties for such claimants who are already at a distinct disadvantage compared to other users. Awareness of the existence and purpose of the ET, gleaned through press reports, informal networks, online sources and other means, is generally high even if the detailed knowledge required in order to prepare and submit a claim and to argue a case is lacking. This provides some stability and foresight in a process which is often experienced as being stressful and, for some, bewildering with little institutional support available for unrepresented parties in the lead up to a hearing.
Scottish ET Judges’ Change of Status and Loss of Tenure:
The effect of the proposal on the current ET judges in Scotland is worthy of consideration in this context. Under the provisions of the Tribunals (Scotland) Act 2014 (T(S)A), the transfer of the ET(S) to the FTT(S) will mean that those determining cases will no longer be known as ‘employment judges’ but as ‘legal members’ without the status of judicial office holders (ss. 13 and 17 T(S)A). This will also mean the loss of judicial tenure for the salaried employment judges (Schedule 7 T(S)A). This move would, in my view, pose a serious threat to the tenet of judicial independence which would be in contravention of international law (e.g. The United Nations Basic Principles on the Independence of the Judiciary (1985)) and recognised good practice guidelines (e.g. The International Bar Association’s Minimum Standards (1982) and The Latimer House Principles endorsed in 2003 by the Commonwealth Heads of Government Meeting). To be blunt there would be no guarantee that those presiding over cases in Scotland were without fear or favour in relation to their own appointment. In contrast, those using the ET in England and Wales will continue to have their cases heard by employment judges, presumably with judicial tenure and all that that entails. The threat to judicial independence aside, the adjudication of employment disputes across the two jurisdictions will have the appearance of a two-track system with the Scottish variant being lower in status than its English counterpart despite the application of identical legal provisions requiring the same level of expertise in both places due to the reserved nature of employment legislation.
A related and, in my view, critical concern lies in the resulting retention and recruitment issues with the current Scottish employment judges likely to be highly dissatisfied with the effect of the proposed changes on the terms of their own appointment. This will make it difficult to recruit the best and most talented employment law practitioners in replacement roles in the future. The impact of this on the perpetuation of a fair and consistent service could be acute and is likely to have a detrimental effect on the experiences and perceptions of unrepresented litigants.
Claimants’ Perceptions and Experiences of ET Judges:
Our research data indicate that ET judges often go to significant lengths to try and ensure that participants have their say during hearings. Although this does not always enable them to do so due to a lack of confidence, feelings of intimidation due to the formality of the hearing and the fact that the experience is often completely new to unrepresented claimants, it does have a positive effect on perceptions of the process and acceptance of the outcome whether or not judgment is given in the claimant’s favour. Furthermore, many claimants expect some level of formality at the hearing stage so that the status of the person deciding their case (i.e. that of a ‘Judge’) is symbolically important. For many, the hearing before a judge may be the first time that they feel that what has happened to them up to and including the loss of a job has been taken seriously.
Alfie felt disadvantaged by not having legal representation but did look favourably upon the judge in his hearing,
“One of the things that’s intimidating is talking to the tribunal and speaking in front of a judge, but the judge was quite nice; she was understanding. She knew I didn’t have a representative. Maybe if I’d had a solicitor, things might have been a little bit different.”
Drawing on our observations of tribunal hearings and participants’ reflections, judges were seen to explain procedures to unrepresented claimants during hearings using everyday language. This can be illustrated with reference to Brian’s case. Brian had been employed as a car valet for small family-run car sales business for 8 years until, following allegations of verbal abuse and threats by his line manager (the owner’s son), he was forced to resign when his health began to suffer. Brian was severely dyslexic and relied on his partner to help with paperwork and written communications. He was reluctant to take his claim to the ET because he lacked confidence in his ability to explain what had happened to him and feared reprisals from his ex-line manager. In the lead up to the hearing, he became extremely stressed and nervous.
Brian represented himself at the hearing as did his ex-employer. In setting out his understanding of the case, the judge stated that it was a claim for constructive dismissal and that Brian had to demonstrate that he had resigned due to a breach of contractual obligations on the part of the employer. The judge asked Brian to explain the specific breach of contract that had occurred. This confused Brian who replied that he had never had a contract. The judge then reframed his question asking whether the specific incident that resulted in Brian’s resignation was a “one off” or whether he had resigned as a result of accumulated actions with the latest being the “final straw”. This enabled Brian to tell his story without feeling the need to use legal language. The judge was able to deduce the legal relevance in what Brian recounted.
During cross-examination Brian and his ex-manager’s exchanges became bad tempered with both parties appearing to lack the professional approach more usually displayed in legal proceedings. Using everyday language, the judge was able to restore order so that the case could continue,
“Excuse me, both of you … the point of me being here is to make a decision. If you want to have a carry on go into the car park.”
Through such interventions ET judges attempt to ensure that unrepresented claimants receive a fair hearing, although it should be noted that some individuals still struggle to understand proceedings and to identify what is required of them during the hearing.
This is not to say that judges give any particular support to claimants which would compromise their own impartiality but that they appear to perform a levelling function ensuring that unrepresented claimants (and respondents) receive a fair hearing. As Bridgette’s experience at hearing demonstrates, the judge in her case made it clear that her role required her to remain impartial,
“[She]seemed like quite a no nonsense sort of person. I’d say she was fair. People had told me, ‘oh, representing yourself will go in your favour and they’ll hold your hand’ but I didn’t feel that they held my hand at all... when she asked if I had the cross-examination questions and I said, ‘yes’, and she said, ‘well, that’s good because I’m not here to represent you’, I felt that if there was something that I’d majorly missed out that maybe they wouldn’t have helped, because she kept saying, ‘oh, I’m explaining this to you because you’re not represented, I can’t tell you…’ [She] didn’t overly try to be nice or anything, she just said the facts.”
Ensuring Fairness in the Face of Unmet Legal Need:
With regard to the unmet needs of some unrepresented claimants, our data show that the imposition of ET fees is not the only potential barrier to justice faced by such individuals with a range of difficulties experienced prior to the introduction of fees. The role performed by the specialist ET judges in Scotland, in line with that of their counterparts in England and Wales, can be crucial in ensuring as far as possible that the process is fair and consistent regardless of whether parties can afford to pay for legal representation. The upheaval likely to be caused by the ET(S)’s proposed transfer to the FTT and subsequent impact on the Courts and Tribunal Service’s ability to retain and replace the current ET judges would cause confusion and difficulty for those claimants who are already largely unsupported. This has the potential to reverse some of the gains in access to justice made by the Scottish Government’s planned abolition of ET fees.
Mismatch of Policy Aims and Proposals:
In the consultation document ‘The Scotland Bill – Consultation on Draft Order in Council for The Transfer of Specified Functions of the Employment Tribunal to the First-tier Tribunal for Scotland’, the policy aims that these proposals are intended to achieve are stated as, inter alia, being to:
…ensure that Scotland has a modern, efficient and effective tribunals system that meets the needs of the Scottish people. In taking control of the management and administration of the Employment Tribunals, we seek to contribute specifically to the following National Outcomes:
a. We have tackled the significant inequalities in Scottish society
b. Our public services are high quality, continually improving, efficient and responsive to local people’s needs. (para. 7)
And
…be mindful of the need to ensure that individuals will be able to effectively enforce their employment rights, and that the underlying employment law and policy will remain reserved. (para. 9)
For the reasons outlined in my response, I have serious doubts that these aims will be achievable if the draft order’s provisions are implemented.

No