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Scottish Tribunals at Risk of ‘Forum Shopping’

By February 15, 2016February 17th, 2016Legal Update
Forum Shopping at Scottish Employment Tribunals | HR Solutions

The Scottish Government has submitted plans to transfer certain functions of the UK Employment Tribunal service to the Scottish courts.

But Holyrood’s commitment to scrapping Employment Tribunal fees could lead to an influx of claims from across the UK.

The Government published draft legislation in January that covered the ongoing devolution of the Scottish legal system. This legislation includes the abolition of fees for Employment Tribunal claims.

The intention is to allow claims from any one individual or case with a link to Scotland. However, there is a risk that the Scottish courts will be overwhelmed with tenuous claims from the rest of the UK.

As well as allowing individuals to lodge a claim against employers that are based North of the border, claims can also be submitted against any employer that carries out business there. This means that UK-wide organisations could face claims from Scottish courts on behalf of employees with no Scottish connection.

The Department for Business Innovation & Skills (BIS) has made it clear that the proposals are not final.

Observers have warned that the staggering drop in claims since the introduction of Employment Tribunal fees will lead to ‘forum shopping’. This in turn will cause undue strain on the Scottish courts.

Kate Hodgkiss, partner and head of employment at DLA Piper in Scotland, said: “Although there are provisions for cases to be transferred, and we would expect to see cases with weak links to Scotland being transferred back to the appropriate Tribunal, forum shopping could result in a significant administrative headache for the Scottish Tribunal system and a potential cost burden for employers.”

“A genuine concern for all parties in valid Scottish Cases will be the resulting delays in dealing with cases where there is a backlog of unexpected claims that have been lodged in Scotland to simply avoid paying fees.”

Time will tell if this divide will put pressure on the rest of the UK to scrap the fees system, or instead put more pressure on a Scottish legal system that is bidding for independence.

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