In light of fundamental changes proposed to the Employment Tribunal system by the Scottish Government, now seems a good time to reflect on how parties to employment disputes might be affected.
The proposal, now the subject of a consultation paper, is that employment tribunals in Scotland would be downgraded. Although they would continue to deal with the same types of case, by comparison with their existing status and their counterparts in England and Wales, their place in the administration of justice would be diminished.
Employment Judges in the Scottish tribunal system would lose their judicial tenure, the existence of which has long been seen as essential to maintaining independence of the judiciary. Generally speaking, judges with tenure are protected against removal from office until retirement.
This helps ensure decisions they make are not tainted in any way by concerns about removal from office by reason of issuing a judgement that doesn’t find favour with the powers-that-be.
The granting of tenure to judges, including those in the employment tribunal, is also helpful in attracting the best most talented candidates for judicial office. The granting of the security is felt to be an appropriate trade-off for the reduction in income that often follows the transition from private practice to judicial office.
When Industrial Tribunals were set up in 1964, it was intended that they should present a cost-effective, straightforward system for resolving and adjudicating on workplace disputes. Since then, it has operated well in the main and adapted successfully to changing economies and increasingly complex legislation. While one might have understood the argument in the early days for treating these tribunals as administrative bodies, the reality is that, as every law firm website will tell you, it has evolved into a very difficult, complex area of law.
Tribunals have adapted during times of great economic change and evolution of European law which, like it or not, is deeply enshrined in UK employment law. Not only are employment and equality cases frequently complex, they often involve important issues of principle.
As someone who has represented client in hundreds of employment law cases I find it difficult to understand how the proposed changes can be justified. While a number of interests must be taken into account, I see the priority as ensuring that employees and employers receive fair hearings and judgments of the highest quality. I have seldom heard a client complain about not getting a fair hearing in an employment tribunal. Much of this I put down to the quality of the judges.
The importance of judicial independence was highlighted a couple of weeks ago in a decision of the Court of Appeal in Malta. It upheld a judgment of the lower court to the effect that Industrial Tribunals there are illegal because chairpersons do not have judicial tenure and are therefore not judicially independent.
Although it is the mirror image of the situation in Scotland, the principle is the same. Removal of tenure for Scottish employment judges could be open to challenge and create uncertainty and chaos. That would be unfortunate.
• Malcolm Mackay is chairman of United Employment Lawyers, a network of over 35 UK law firms