First Minister Nicola Sturgeon announced an end to employment tribunal fees as she revealed the Scottish government‘s legislative programme yesterday.
She promised to draw on new powers delivered by the Scotland Bill to scrap charges for bringing cases to an employment tribunal, winning praise from the Law Society of Scotland and a range of Scottish lawyers.
The charges were introduced by the UK government two years ago.
John Muir, employment lawyer and partner with Muir Myles Laverty, said: “The fees were outrageous and quite clearly a political tool to discourage people exercising a fundamental human right, i.e. access to justice – unlike most Tory policies, it actually worked and applications dropped by nearly 60 per cent.
“Remember the vast majority of people who go to Tribunal are unemployed and facing an uncertain future. To pay a four figure sum to even have your case heard was asking people to commit much of their meagre savings – albeit reimbursed if successful.
“The Scottish government are to be commended, but if they really want to create a tribunal system which is fair or fairer, then the clawback provisions relating to legal aid need to be looked at. This is also a disincentive to justice.
“The median tribunal award for unfair dismissal is around £5,000 and it will take about £2,000-3,000 in legal aid to take the case all the way through a hearing. Given that expenses are rarely awarded and, where they are, the median is £1,000, you can see that people are looking at 6 months of stress, etc. for a fairly meagre financial outcome.
“Win an average legally aided case and you’ll walk away with £2k-3k and still have benefit clawbacks on top!”
Brian Campbell, a legal director in the Brodies LLP employment team, said: “Should tribunal charges be removed, it will be interesting to see the effect on numbers of claims received by the Scottish tribunals, not only from Scottish-based workers but employees of UK-wide businesses who may see an opportunity in some cases to avoid English fees, typically £1,200 per claim.”
Alan Delaney, a director in the employment team at Maclay Murray & Spens LLP (MMS), said: “The introduction of and extent of fees charged to bring Employment Tribunal claims has been controversial from the outset.
“Judicial review challenges have so far been unsuccessful, with the Court of Appeal last week dismissing an appeal by UNISON.
“In scrapping fees altogether in Scotland, we are highly likely to see a significant rise in the number of employment claims brought by employees north of the border.”
David Morgan, partner at Burness Paull LLP, added: “The Scottish government’s announcement yesterday that it proposes to abolish Employment Tribunal fees did not come as a surprise.
“Whether the Scottish government’s proposal yesterday will put any pressure on a UK-wide stage to make a change remains to be seen.
“If these proposals were implemented in Scotland only, we would have a marked difference, which could not only see a general rise in Employment Tribunal claims against employers in Scotland, but also the risk of ‘forum-shopping’ for UK-wide employers, facing claims from employees south of the border trying to get their claim launched in Scotland instead.”
Christine McLintock, president of the Law Society of Scotland, added: “We are very pleased to see the Scottish government’s future commitment to the abolition of employment tribunal fees.
“This is something we have been pressing for since they were introduced, and will allow more people to raise cases regardless of their financial circumstances.”