Changes to employment regulation in Scotland 


Significant changes to employment regulation are taking place in Scotland, because of constitutional developments following the Scottish independence referendum of 2014. Under the Scotland Act 2016, which received Royal Assent on 23 March 2016, law-making powers devolved to the Scottish government include some powers in relation to equal opportunities at work, some employment support services and the regulation of employment tribunals and tribunal rules of procedure. The statutory employment rights themselves, such as the right to claim unfair dismissal, remain the responsibility of the Westminster government.


In September 2015, the Scottish government announced that it will abolish employment tribunal fees in Scotland as soon as the government is “clear on how the transfer of powers and responsibilities will work”, following a consultation. 


Regarding equality laws, the Equality Act 2010 (EA 10) will continue to apply in Scotland, but under the Scotland Act 2016 the Scottish Parliament now has the power to implement the duty on public bodies to have due regard for the need to eliminate inequalities resulting from socio-economic disadvantage (section 1, EA 10) which has never been implemented by the government in Westminster. 


In May 2015, the Scottish National Party reached an agreement with the Scottish TUC to campaign for greater devolution of employment rights, including health and safety, equality and trade union laws and for the 90-day collective redundancy consultation period to be reinstated in Scotland.


There are already significant differences between Scotland and England in relation to workers’ rights, for example, new legal duties on commissioning bodies engaged in public procurement (see Chapter 12), anti-blacklisting procurement rules (see Chapter 5), the retention of Scotland’s Agricultural Wages Board following the abolition of the board in England (see Chapter 4) and in Scotland’s attitude to the Trade Union Act 2016 (TUA 16), described by SNP leader Nicola Sturgeon as a measure that would never have been proposed, let alone passed, in the Scottish parliament (see Chapter 6). The Welsh Assembly has also consistently opposed the TUA 16. If the Westminster government attempts to impose the new laws in Wales and Scotland, especially provisions in the Act as to facility time, this could lead to a judicial review challenge in the civil courts. The TUA 16 will not be implemented in Northern Ireland.