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Employment tribunals and dispute resolution: key differences in Scotland and Northern Ireland

Updating author: Tina McKevitt, consultant editor (Scotland): Gillian MacLellan, consultant editor (Northern Ireland): Gareth Walls

Scotland

Since 1 October 2004 there have been common employment tribunal rules of procedure for Scotland, England and Wales. Some minor variations in practice in Scottish tribunals have continued, as follows:

  • The claimant will send the claim form (ET1) to the Central Office of Employment Tribunals for Scotland, which is based in Glasgow, rather than a Regional Office, although as in England and Wales, there is provision for online submission.
  • Parties are required to disclose only the documents on which they intend to rely.
  • Witness statements are generally not used; witnesses usually give their evidence orally. Witnesses are not permitted to attend the hearing before giving evidence. In August 2022, the President of the Employment Tribunals in Scotland issued a practice direction and presidential guidance in connection with the use of witness statements in Scotland. The practice direction explains that notwithstanding this guidance, the presumption remains that evidence in chief should be given orally in Scotland.
  • Closing submissions follow the order of the evidence.
  • Tribunals tend not to split liability and remedy hearings so in nearly all cases the decision is reserved.
  • Aggravated damages cannot be awarded. However, in serious cases of discrimination where aggravated damages are thought to be appropriate, the claimant may ask the tribunal to take this into account when deciding any award for injury to feelings.
  • Costs are referred to as expenses in Scotland.
  • Legal Aid covers representation at employment tribunals in Scotland, although qualification is subject to strict financial means tests.

The Employment Appeal Tribunal (EAT) office in Edinburgh is responsible for administering appeals against decisions by Scottish employment tribunals. Appeals from the employment tribunal are heard by the EAT, appeals from the EAT are dealt with by the Court of Session, and appeals from the Court of Session proceed to the Supreme Court.

The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237) apply to Scotland with a couple of minor modifications relating, among other things, to the jurisdiction of tribunals in Scotland (para.8(3) of sch.1 to the Regulations. The Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 (SI 1994/1624) permits tribunals to deal with claims for breach of contract that arise or are outstanding on termination of an employee's employment.