Changes to employment regulation in Scotland 




Employment regulation in Scotland is diverging from that of England and Wales in several important ways, especially as a result of constitutional developments that followed the 2014 Scottish independence referendum. Under the Scotland Act 2016, various law-making powers have been devolved to the Scottish government, including:



• some powers relating to equal opportunities at work;


• the power to implement the socio-economic duty under the Equality Act 2010 (see below);



• some employment support services; and


• employment tribunal regulation, including rules of procedure. The statutory employment rights themselves, such as the right to claim unfair dismissal or restrictions on the right to strike, remain the responsibility of the Westminster government.


From April 2018, public sector bodies in Scotland, including the Scottish government, NHS and local authorities, have a duty to consider how to reduce poverty and inequality when making decisions. This is the socio-economic duty (Part 1, EA 10) which in Scotland is called the Fairer Scotland Duty. The duty is to be implemented over a three-year period (see Chapter 7). 


Other significant differences include:



• specific legal duties on Scottish commissioning bodies when engaged in public procurement (see Chapter 12);



• extra obligations in relation to the Public Sector Equality Duty, including a legal obligation to conduct an equality impact assessment, abolished in England in 2011 (see Chapter 7);



• specific anti-blacklisting procurement rules (see Chapter 5); and



• retention of Scotland’s Agricultural Wages Board following the abolition of the board in England (see Chapter 4);


• As Law at Work goes to press, the Scottish government has issued new guidance on public sector facility time (see Chapter 5) advising employers to provide only the minimum data required by the Trade Union Act 2016 (page 148) and to ensure the new regulations are not used to reduce facility time. The guidance promises to work with public bodies, the STUC and unions "to prevent the facility time reporting requirements from undermining the role of trade union representatives".