Scottish Government announces plans to abolish fees in Scottish employment tribunals

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

The Scottish Government has announced that it plans to abolish fees for employment tribunals to ensure that “employees have a fair opportunity to have their case heard”, as part of its programme for Scotland for 2015-16.

Following the Scottish referendum, in January 2015 the UK Government published its Scotland Bill, with the aim to devolve certain powers to the Scottish Parliament, including decisions relating to procedure, administration and funding of employment tribunals. Although any devolved powers may be subject to specific constraints to ensure there is consistency in the practice and procedure of the different tribunals in the UK, the intent of the Scottish Government in relation to fees is clear.

Currently, an employee who wants to bring an employment tribunal claim in the UK will need to pay up to £1,200 (depending on the type of claim) to proceed to a full hearing, unless they fall within the fee remission scheme. In light of the Court of Appeal’s recent rejection of Unison’s appeal against the judicial review decision regarding the lawfulness of the introduction of employment tribunal fees, it seems that for the time being in England and Wales at least, the fee system is here to stay. If Scotland proceeds with proposals to abolish employment tribunal fees, we may start to see potential claimants try to push their claim north of the border in an attempt to avoid paying a fee.

Under the tribunal rules of procedure, there are various grounds on which a claim may be presented in Scotland and these include where one or more of the acts complained of took place in Scotland, or if the employer carries on business in Scotland. The wording of the latter rule means that it is possible for an employee based in England to try to bring a claim in Scotland if their employer carries on business there.

The Scottish Government’s publication states that it will abolish fees when it is “clear on how the transfer of powers and responsibilities will work”, and it remains to be seen whether it will be able to do so in light of any specific constraints that will be imposed on the devolved powers. We will keep you updated with relevant developments.