Review of Employment Law in Scotland (Middlemiss and Downie)

Employment Law in Scotland

3rd edition

Sam Middlemiss and Margaret Downie

ISBN: 978-1526509628
PRICE: £85

At nearly 900 pages this is a comprehensive overview of employment law. The timing of publication is unfortunate both because of the huge disruption to workplaces because of the COVID-19 pandemic and significant, presumably temporary, changes to normal Employment Tribunal practices. The UK workforce, employers, the legal profession and tribunal judges are still getting to grips with new ways of working. Millions of workers have been furloughed, and hundreds of thousands more are facing redundancy. 

At the time of writing no hearings in person are being held, and scheduled hearings are being converted into preliminary hearings and are being held by phone and video link. It seems unlikely that face-to-face hearings will resume until autumn at the earliest, and, depending on what the Westminster Parliament decides, the UK may then be fast approaching a hard exit from the EU. As it stands, the UK has left the EU, but remains subject to EU law until 31 December 2020.

It is also worth noting that even after that date, the body of UK case law built up since January 1973, when the UK joined what was then the EEC, will still apply unless and until Westminster makes significant statutory changes which have the effect of overturning earlier case law.

Under Theresa May the Government had made a commitment to protect rights that had arisen as a result of the UK's membership of the EU, but following last year's general election the new administration announced its intention to introduce an Employment Bill without any of the guarantees previously offered. A draft bill has yet to see the light of day, and it is anyone's guess what the next few months will bring.

Middlemiss and Downie have done a good job in covering the major bases of British employment law, and its current place in the respective legal frameworks of Scotland, and England & Wales. They have drawn heavily on a large body of case law made by the Employment Appeal Tribunal, the Court of Session, the Court of Appeal, and the UK Supreme Court.

Because employment law is reserved to Westminster the Scottish Parliament has no significant locus in framing the statutory position, but the existence of a distinctively different judicial system in Scotland has made it possible for contradictory decisions to be made by the Court of Appeal in England & Wales, and the Court of Session in Scotland. 

The two courts have equal standing, and employment tribunals in Scotland and the Scottish Division of the Employment Appeal Tribunal are bound to follow decisions of the Court of Session, while their English and Welsh equivalents must follow the Court of Appeal. Relatively few cases make it to this stage because of the expense, but those which do can be further appealed by the unsuccessful party to the UK Supreme Court, which binds courts and tribunals in England, Scotland and Wales.

One other distinctive feature of Scottish employment tribunal practice is that unlike south of the border, the witnesses give their evidence in person in almost all cases as opposed to by written witness statement. Secondly, witnesses who have still to give evidence are not permitted to hear preceding evidence. Middlemiss and Downie do not make these distinctions clear.

The authors also indicate that Employment Tribunal judgments are usually given on the day, or final day of the hearing. This is only the case in undefended cases. In all other cases it remains customary for the tribunal to reserve its decision and issue it in writing a few weeks later.

An increasing number of cases at first instance are heard by a legally qualified judge sitting on his or her own. This has undermined the concept of the industrial jury which underpinned the original Employment Tribunal system. Only discrimination cases are invariably heard by a panel of a judge and two lay members.

In summary this book will prove a worthwhile addition to any employment lawyer’s bookshelf, but needs to be treated with caution on matters of procedure as opposed to substantive law.

Steve Briggs, Beacon Workplace Law Ltd

The review editor is David J Dickson

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