No vote may yet turn out to be yes

Gordon Brown has foreseen, among many other things, agreement on new powers over employment rights. Picture: Andrew OBrien

WITH the Scottish referendum debate still at the forefront of many people’s minds, the implications of a No vote will have an impact of our working environment – whether we like it or not.

The debate before the vote was always far more nuanced than the simple question on the ballot papers, and that subtlety is now reflected in the post-poll commentary. Better Together repeatedly told us that a vote for No was a vote for change. So No means Devo Max, a modern form of Home Rule, even federalism. We must await the outcome of Lord Smith of Kelvin’s devolution commission, and it will be intriguing to see what Westminster actually does with its findings.

For employment lawyers, Gordon Brown’s recent letter to members of his constituency Labour Party has whetted our appetite. Among a wide range of new powers for the Scottish Parliament, the former prime minister foresees “agreement on new powers over employment rights”. Little coverage was given to the issue of employment rights during the debate. Yet, under the coalition government, the law of employment has steadily and consistently been recalibrated in favour of the employer.

This process crystallised in July 2013 with the introduction of the requirement for employees to pay a fee before bringing a claim at the Employment Tribunal. For a basic unfair dismissal claim, a £250 lodging fee is payable. A further fee of £950 must then be paid before the final hearing. For an employee who has just lost his or her job, these costs are not simply prohibitive. They have made it all but impossible for many people to enforce their legal rights.

The coalition government would no doubt point to the remission system available to those with virtually no savings and who are either out of work or back in work but on low pay. In reality, the vast majority of potential claimants don’t qualify for remission and are thus effectively excluded from the system. This quiet revolution is borne out by the coalition government’s own statistics which have consistently shown a massive reduction in the number of claims since July 2013.

Throughout the referendum debate, the Yes campaign focused consistently on the democratic deficit. What better way to illustrate it than by reference to the cavalier approach to employment rights of an unpopular coalition government? And yet this issue remained in the shadows.

If Gordon Brown gets his way and new powers on employment rights are devolved to the Scottish Parliament, it will be worth dusting down the Scottish Government’s white paper on independence. This document of course set out the SNP’s manifesto. Had Scotland voted Yes, the laws in force immediately before independence would have remained in force immediately thereafter. Following national elections, it would then have been for the newly elected Scottish Government and Parliament to determine future laws.

In the white paper we get a flavour of the SNP’s priorities in relation to employment rights, had they won that first election in an independent Scotland. To give just a few examples, the national minimum wage would have risen in line with inflation, there would have been consultation on employee representation on company boards, and consideration would have been given to positive discrimination. That would have included taking steps to ensure equal opportunities for women in terms of the quality as well as the number of jobs.

Had we voted Yes, it was by no means assured that the SNP would have won that first national election, and it is possible that an acrimonious 18 month period of negotiation with Westminster and the EU following the referendum could have cost them substantial support. There was therefore no guarantee that the SNP would ever have had the opportunity to tackle these issues as the first government of an independent Scotland.

Ironically, the No vote increases the likelihood that the SNP will have just such an opportunity. If – it may be a big if – powers over employment rights are actually devolved to the Scottish Parliament, it seems all but certain (taking into account current polling) that the SNP will form the Scottish Government that will first exercise them.

This may prove scant consolation for the Nationalists following the loss of the referendum, but when they reflect again on what the No vote actually means, in this one respect at least, it may actually prove to mean Yes.

• Ewan Mowat is an employment lawyer and a member of the United Employment Lawyers network. He writes in a personal capacity.