Formation of contracts
In Scotland a contract (including an employment contract) is formed when there is an unqualified acceptance of an unqualified offer and both parties have the intention of creating a legal relationship. Unlike in England, as soon as the essential terms are agreed upon there is a contract formed in Scotland, even though it may be the case that the finer details of the contract are not yet agreed.
Employment law contracts in Scotland, such as settlement agreements, may differ slightly to the same documents in England. Currently in Scotland, it is not valid to sign contracts by way of counterpart. However, this is due to be changed (albeit the timescale for this is still unclear) so that Scotland is brought into line with England in this respect. Once this change has been made it will allow settlement agreements or contracts of employment to be signed remotely by the employer and employee.
Third party rights
The Contract (Rights of Third Parties) Act 1999 applies in England and Wales and allows a person to have an enforceable right under a contract to which they are not a party, where this is the intention of the parties.
This piece of legislation does not apply in Scotland. Instead it is the common law which applies and which may provide a third party with rights under a contract where certain conditions are met.
England and Wales have eight bank holidays, whereas Scotland has nine. This is due to St Andrew's Day being a bank holiday in Scotland. However, as with all bank holidays, employees do not have the right to take it as a holiday and employers and banks do not have to close on this day.
In terms of the usual practice regarding bank holidays, in England these are often automatically public holidays as the majority of workers are given the day off and the day is observed as a holiday. In Scotland whether employees are allowed to take a bank holiday off work varies from employer to employer and there is less uniformity. Most employment contracts in Scotland provide an entitlement to a mix of bank and local holidays.
In both England and Scotland claims can be brought in the civil courts or employment tribunal for breach of contract or wrongful dismissal. The right to bring such claims will prescribe in Scotland after a certain length of time and therefore will no longer be available. In England and Wales the concept of prescription does not form part of the law. However, there is the concept of limitation in both jurisdictions which provides that rights become legally unenforceable, although not extinguished, after a certain period of time.
A claim for breach of contract in Scotland will prescribe five years after the date that the obligation becomes enforceable under the Prescription and Limitation (Scotland) Act 1973. In England and Wales, under the Limitation Act 1980, there is a six year limitation date for such claims or twelve years where the contract was executed as a deed. In addition, arrears of remuneration or damages cannot be claimed under the Equal Pay Act 1970 after five years in Scotland, whereas it is six years in England. It should be borne in mind that there is a much shorter time limit of three month (less a day) from the date of termination of the contract for raising a breach of contract claim in the Employment Tribunal.
Claims under the Protection from Harassment Act 1997 cannot be made after three years in Scotland as this is the limitation period for such claims. However, in England there is a longer limitation period of six years.
In addition, in England and Wales pursuing a course of conduct which amounts to harassment is a criminal offence. However, it is not in Scotland. Instead, in Scotland, such conduct would be the subject of civil proceedings and a court may award damages or grant an interdict or a non-harassment order. If such an order is breached, this is then classed as a criminal offence.
Employment tribunal procedure
The Employment Tribunal procedure applicable in England is not identical to the procedure which applies in Scotland. For example, witness statements are not normally used in Scotland. Also, in Scotland the practice is to not allow witnesses into the Tribunal hearing until they have given their evidence. This differs to the practice in England.
Civil court procedure
Scotland has a distinct court system to England and Wales. The Court of Session in Edinburgh is the highest civil court based in Scotland. However, in civil cases, it may be possible to appeal to the Supreme Court. Below the Court of Session are Sheriff courts in each of the six Sheriffdoms in Scotland.
The civil court procedure followed in Scotland is also different to that which applies in England. In particular, the procedure for applying for an interim interdict, for example, to enforce a restrictive covenant in Scotland is not the same as the procedure for applying for an interim injunction in England. In Scotland, unlike in England, it is possible for parties who anticipate that another party may raise an action against them seeking interim orders to instruct their solicitor to lodge caveats. When caveats are lodged the court will inform the solicitor that an interim order, such as an interdict, is being sought and will allow the party the opportunity to appear at a hearing to oppose the interim order before the judge takes a decision on whether to grant it. The tests for a Scottish court to apply when considering whether to grant an interim interdict is whether the party seeking the interdict has a prima facie case and whether the balance of convenience favours the party seeking the interdict. With regard to the English procedure, the test is, firstly, whether it would be just and convenient and, secondly, whether it would be proportionate. Although these tests are different, they do consider similar factors.
It is important to bear these differences in mind when dealing with employment matters in the different jurisdictions.
If further advice is required on the differences in employment law between Scotland and England or if you wish further information about the specialist employment law services that we can provide to other law firms (which includes reviewing any contractual documentation from a Scottish law perspective) please use the contact details below.