Of particular interest from an employment law perspective is draft clause 25. This clause would devolve powers in relation to the administration and management of Tribunals to the Scottish Parliament. The relevant part of the explanatory document states:
Clause 25 delivers paragraphs 63-64 of the Smith Commission Agreement in relation to tribunals dealing with reserved matters in Scotland. While the underlying reserved rights and duties will continue to be reserved, the clause provides the mechanism for the transfer of functions from reserved tribunals to Scottish tribunals. Doing so will enable the Scottish Parliament to exercise powers relating to those tribunals, including decisions concerning rules of procedure, membership, administration and funding. However, in order to ensure the continuing effective delivery of the overarching national policy (which remains reserved to Westminster) these powers may be subject to specific constraints and requirements. This will also ensure that paragraph 64 of the Smith Commission Agreement, which reserves the underlying rights and duties, is also given effect.
As I have previously indicated, this could potentially give the Scottish parliament the power to reduce or even remove Employment Tribunal fees which were introduced with effect from 29 July 2013. Currently, for example, for an unfair dismissal claim, the fees payable by the dismissed employee are £250 to lodge the claim and, in addition, £950 as a hearing fee.
Since the introduction of Tribunal fees the number of claims lodged with the Employment Tribunal has plummeted (see, for example, Latest employment tribunal statistics support abolition of fee regime) and it has been argued that this is preventing access to justice. Two judicial review applications by Unison have been unsuccessful albeit Unison were given permission to appeal the latest decision.
The Scottish Government has previously voiced their opposition to Tribunal fees which suggests that we could end up with a situation where there are no Tribunal fees for claims in Scotland but fees where the claim is raised in England & Wales.
We will, no doubt, hear more about this in due course.