All in good time

Scottish part-time employees potentially have greater rights than their English counterparts as a result of the differences in approach to the time-bar adopted by the Scottish Employment Appeal Tribunal (EAT).

Prior to the landmark House of Lords decision in R v Secretary of State for Employment, ex parte EOC (1994), employees who worked for fewer than 16 hours a week had to be employed for five years before they won the right to lodge a claim for unfair dismissal with the industrial tribunal. Employees working 16 hours a week or more only had to wait two years. The Lords decided those provisions were discriminatory and contrary to European Law.

Following that case, the Employment Protection (part-time employees) Regulations 1995 were amended to equalise the qualifying period. However, this only applies to those employed after the amendment date of 6 February 1995.

But what about part-time employees dismissed before that date with more than two years service under their belt but fewer than five? According to the Scottish EAT, such employees would still have the right to lodge claims provided they were made within a “reasonable time” of the amending legislation coming into force. This follows its Rankin v British Coal Corporations (1993) decision.

But the English tribunal disagreed with the Scottish approach in Methilhill Bowling Club v Hunter (1995) and RJ (Brian) Ford v C Williams (unreported), both of which followed Rankin, and said so in Biggs v Somerset County Council (1995) and British Coal Corporation v Keeble (unreported), confirmed by the Court of Appeal in Biggs v Somerset County Council (1996).

Broadly speaking, the English approach is that claims have to be brought within three months of the dismissal date, notwithstanding the fact that the domestic legislation apparently excluded such claims.

This difference of approach can produce odd results. The theory is that the EAT is a UK-wide tribunal which sits in two locations, London and Edinburgh. Accordingly, Scottish EAT decisions are binding on industrial tribunals sitting in England and vice versa. However, decisions of the Superior Appeal Courts, the Court of Appeal and the Court of Session, are binding only in their own jurisdictions.

In theory, therefore, up until the decision of the Court of Appeal, industrial tribunals sitting in Scotland or England would have been free to adopt whatever approach they favoured.

However, industrial tribunals in England must now follow the English approach, whereas Scottish based tribunals do not and are still free to choose.

The result is that Scottish applicants with cases pending could still persuade the tribunals their claims are in time, English applicants cannot. And only time will tell which approach will be favoured by the Scottish industrial tribunals.