Employment law: The issues in a sector that never stands still

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SINCE the revived Scottish Parliament came into existence in 1999, it seems as though we have had nothing but a constant upheaval in the laws of the land.

Added to that perception is the fact that the UK government and the European Union (EU) have brought about massive changes to our laws in recent decades. Even the lawyers will tell you that it is sometimes difficult to keep up with everything that is going on.

Because it is so sensitive, and applies to the majority of the population which has to work for a living, in recent years the field of employment law has arguably been subjected to increasing attention by politicians and regulators.

The Thatcher government’s wholesale changes to employment law held sway for many years, but the Labour government changed some laws and, increasingly, the current coalition government is bringing in plenty of changes to employment law, while the EU has brought in a whole host of regulations.

At present, employment law is a reserved power for Westminster, and Holyrood can only alter employment legislation by passing other laws – the ban on smoking in public places, for instance, was one Scottish Parliamentary measure that profoundly affected workplaces.

So, in the run-up to next year’s referendum, it seems legitimate to speculate as to what would happen to our employment laws if Scotland were to become independent.

In common with lawyers in many other sectors, employment lawyers are raising legitimate questions and seeking answers about the future in an independent Scotland.

One of these is Karen McGill, partner at MacRoberts solicitors and an accredited specialist in employment law, who emphasises that her firm does not have political views and certainly none of a party nature.

Like every employment lawyer, she has had to contend with the seemingly interminable changes to legislation brought in by successive Westminster governments, which have also had to cope with the effects of EU rulings in particular – something that could only change if Scotland or the UK as a whole opted out of the EU.

McGill explains: “Every time you think you know what the rules are, they change again, which I guess keeps us all in a job.

“When the Labour government came in, we had a whole new raft of employment legislation and now, with the coalition government, we have their take on how they think employment law should look.

“They are moving more towards employer-friendly rules but they are bound by the constraints of what Europe says our employment law must look like. There is only so far they can go for as long as we remain in Europe.

“European law is now dominant. It governs everything from working time rules and rest breaks to discrimination rules – they all come from Europe, so we can only work within the framework that Europe sets out for us.

“Europe has been good for most UK workers, because we now have equal pay protection, for example, and we also now have protection for people who are discriminated against on grounds of age, or their race or political views – that has all been driven by 

“For another example, until 1998, there was no entitlement to holidays unless your employer was kind enough to give you them, and it was Europe that ensured that you were given a minimum number of holidays.

“Assuming that an independent Scotland would remain in Europe, employment law could not change too radically.”

The question for a future government of an independent Scotland would be how much of the current UK legislation on employment matters would be retained in a new body of Scots law.

McGill points to one obvious question that independence would raise for employment law – what would be the future for the tribunal system? “We have separate Scottish courts and English courts,” says McGill. “But the tribunal service 
operates on a cross-border basis at the moment.

“In an independent Scotland, we would have to think about creating a whole new body to handle employment disputes, suggesting we would need a new tribunal service.”

The coalition government, in a move which has angered trades unions, is changing the tribunal system later this year so that applicants to employment tribunals will have to pay a fee of up to £250 just to lodge a claim of, say, unfair dismissal, and a further fee of up to £950 for a hearing.

McGill says: “This is a UK government measure and nothing to do with Europe. It’s because of the cost of running the tribunal system and what the government have been saying is that it’s the people who are using the system who should be paying for it, and not all the taxpayers.

“At the moment it costs nothing to put in your tribunal claim, so charging these fees is really going to change the whole basis of the tribunal system as we know it. I would imagine that even at this moment there will be people taking advice on bringing ‘access to justice’ claims about these fees.

“The changes are supposed to be 
happening this summer, so would an independent Scotland keep these fees or decide that they weren’t going to charge fees and stick with the system we have at the moment?”

That’s just one example of the sort of question employment lawyers are raising. McGill is hopeful, but not confident, that all the questions will be answered prior to the referendum.

“I suspect employment law is not that high up the agenda,” she says. “Monetary union, for example, is a much bigger deal for people than employment law.

“It is an important matter, nevertheless. For example, all employment law is UK-based, so I think there would have to be a whole new body of Scottish laws. In effect, we would have to start again, though we could copy over UK statutes.

“And how would a future Government of Scotland regulate trade unions? There could be a difference from what happens just now because there aren’t many European rules about unions.”

Employment lawyers, it seems, are like so many other people with less than 500 days to the referendum – they would like some answers, please.