The Court of Session and sheriff court have the power at common law to grant diligence on the dependence in support of a claim in another tribunal, including an employment tribunal; and it is not a breach of the principle of equivalence in EU law to require a claimant before the tribunal who founds on breaches of EU law, to seek such interim remedies through the court.
These rulings were given today by the UK Supreme Court as it dismissed an appeal by Anela Anwar against the dismissal by the Court of Session of her petition for judicial review against the Department for Business, Energy & Industrial Strategy. She claimed that the UK Government had failed properly to implement EU Council Directives 2000/43/EC and 2000/78/EC ("the Equality Directives") by failing to provide effective interim protection for successful workplace discrimination and harassment claims, and sought compensation for that failure.
Ms Anwar had been awarded £74,647 by an employment tribunal following a harassment claim against her former employer, a charity, and her line manager, but a subsequent arrestment based on an extract of the tribunal's order caught only £2,967. She believed the charity's controllers had intended transferring its funds to a new charity in order to defeat her claim, and had obtained interim interdict against such transfers. It was not in dispute that the employment tribunal had exclusive jurisdiction to hear her claim but did not have the power to grant diligence on the dependence such as an arrestment of funds.
The Court of Session (the Lord President dissenting) held that the introduction of part 1A into the Debtors (Scotland) Act 1987 did not affect the common law power of the courts to grant warrant for diligence on the dependence of proceedings in respect of which the court had no jurisdiction to decide the merits, and that the need to raise a separate action to achieve diligence on the dependence of an employment tribunal claim did not render Ms Anwar's exercise of the EU law right practically impossible or excessively difficult.
Giving the judgment dismissing the appeal, Lord Hodge (Deputy President), with whom Lord Lloyd-Jones, Lord Briggs, Lord Leggatt and Lord Burrows agreed, said that under EU law, member states were obliged to provide effective remedies for the implementation of EU law-based rights. Those remedies had to be equivalent to the remedies available for comparable claims that did not involve EU law (the "principle of equivalence"), and not render the exercise of EU law-based rights practically impossible or excessively difficult (the "principle of effectiveness"). This required there to be an interim remedy available.
The Court of Session and the sheriff court did have the power at common law to grant diligence on the dependence in support of a claim being pursued in another tribunal, such as arbitral proceedings. That did not depend on the court having jurisdiction to determine the merits of the dispute, nor had it been removed by part 1A of the 1987 Act.
He stated that the Supreme Court rejected the contention that EU law required claimants vindicating EU rights to be provided with a "one stop shop", by which the tribunal determining the merits of the claim was also authorised to grant interim measures, along with the argument that the courts’ jurisdiction to grant interim measures in support of employment tribunal proceedings had to be expressly stated in legislation, and not case law, to be sufficiently clear and accessible to comply with the principle of effectiveness.
Any additional hurdles to raise proceedings in the sheriff court were a modest departure from the employment tribunal regime, and were proportionate given the potential of diligence on the dependence to disrupt and even destroy the employer’s business by freezing its assets. As such, the exercise of Ms Anwar’s EU law-based rights was not rendered practically impossible or excessively difficult.
Nor was there a breach of the principle of equivalence: the correct comparator in this case was between an employment claim based on EU law-based rights and an employment claim based on domestic law rights, such as unfair dismissal. As an employment tribunal could not grant a warrant for diligence on the dependence for either claim, there was no breach of the principle of equivalence.