The current landscape in the Employment Tribunal EHRC/SERN Conference

Devolution Clause 33 of the Scotland Bill amends Part 3 of Schedule 5 of the Scotland Act 1998 How does that fit with Paragraphs 63 and 64 of the Smith Commission report? “Specified functions” to transfer to a “specified Scottish Tribunal” in relation to “Scottish cases” (not defined) Specification to be in an Order in Council

Devolution The Order in Council will set out in detail the powers that are to be transferred. The O in C can contain “conditions and restrictions” in connection with the powers transferred including in relation to the composition of the tribunal, the categories of Scottish cases which will be transferred, the rules of procedure, the staff and the accommodation of the tribunal. The O in C can contain provisions designed to secure consistency in practice and procedure and promote “judicial cooperation”.

Key Questions What is the likely timescale? Will all the reserved tribunals transfer at the same time or will they be done one by one? If so, where will the ET fit in? Will the power to change the fees regime be transferred? There are various clues but nothing specifically is said in the Bill itself (although there is still time for the Bill to be amended). Will amendments be made to the Scotland Bill?

Scottish Government position Sept 2015 – legislative programme document includes statement “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”. What will this consultation involve? Will it consider issues such as those raised in recent Law Society (E & W) consultation document: “Making employment tribunals work for all”?

How should employment justice be delivered? Employment and Equality Court or Tribunal? All employment claims heard by a single body rather than being spread across jurisdictions of court and tribunal? If the Scottish Government is going to consult about the “shape of services” to support access to employment justice will it be considering issues like this?

Claims received in Scotland April 2014-March 2015 Single claims reduced by 48% compared to previous year which was already impacted by fees from end of July Multiple claims up by 736% comparing 2014/15 year with Comparing 2012 (no fees) with 2014 (fees) 55% reduction in single claims.

Claims received in Scotland Sex discrimination: comparing Jan-Mar 2015 with Jan- Mar 2013 reduction of 91% (down from 227 to 19). That is a further decline on figures for last three months of 2014 cf to last three months of 2012 (which were down 85%). Consider these figures against the backdrop of BIS/EHRC report “Pregnancy and Maternity Related Discrimination and Disadvantage” (published 24 July 2015).

Claims received in Scotland Unfair dismissal Cf Jan-Mar 2015 with Jan-Mar 2013 down by 64% (down from 739 to 269). Cf of last three months of 2014 with last three months of 2012 showed 65% reduction. Disability discrimination Cf Jan-March 2015 with Jan-Mar 2013 disability claims down by 60% (from 129 to 52). Oct-Nov 2014 cf to Oct- Dec 2012 reduction was 56%

Possible impact of early conciliation July 2015 Acas reported that from April to December % of notifications had resulted in COT3, 22% progressed to ET claim and 63% did not progress further. Acas research suggests most common reason for not submitting an ET claim where case is not settled is off- putting effect of ET fees.

Remission and Help with Fees Project Remissions granted lower than estimated by UK government prior to introduction of fees. Work is ongoing to improve the remission scheme which will become known as the “Help with Fees” scheme. New application form designed and has been tested (although Scotland not one of test locations). Guidance reduced from 31 to 16 pages

Help with Fees Scheme New process when fully implemented will remove the need for paper evidence to be submitted to ET staff. There will be a link between HMCTS and DWP database which will allow for check to be done on benefit status. Hoped that all of the foregoing, which is Phase 1, will be rolled out well before the end of this year.

Help with Fees Scheme 2 Phase 2 will involve an online application being able to be made for help with fees at the same time as ET claim is made online – hoped this will be rolled out by March When done this will make ET the first part of HMCTS to have an online application and help with fees process, working in tandem.

Fees review/inquiry s/attachment_data/file/434207/tor-employment-tribunal- fees.pdf ees-a-z/commons-select/justice-committee/news- parliament-20151/courts-tribunals-fees-charges-inquiry/

Miscellaneous Holiday pay cases Changes to accommodation arrangements in Glasgow ET office Changes to call handling in Glasgow