Crossing the Border

On the face of it, appearing in the Scottish Employment Tribunal should not present any difficulties.  After all, the law is essentially the same – the Butterworths Handbook the same ‘bible’ in both jurisdictions (not particularly surprising given that much of employment law has a common European derivation.)

However, those new to the Scottish jurisdiction often fail to appreciate the differences in procedure. With the devolution of Tribunal administration and funding to Scotland (beyond the scope of this paper), these differences are likely to become more pronounced with time. 

Perhaps the key difference is that, in the majority of cases, there will be no witness statements.  For the English/Welsh cross-examiner this can be somewhat disconcerting.  Whereas he or she may be used to spending hours in case preparation, forensically dissecting each line of the opposing party’s statements, they must now listen to the evidence ‘live’ for the first time (much of which may be unpredictable) and be ready for a seamless start to their cross-examination.    Consequently, although more difficult for the advocate to pre-prepare cross-examination, it nevertheless has the advantage of introducing a freshness to the giving and testing of evidence, something often lacking in the English jurisdiction.

Evidence in chief is therefore led the ‘old-fashioned’ way.   Save for the odd simple question at the beginning of a witness’ testimony, leading evidence is a practice rarely exercised by the majority of modern English/Welsh advocates.  It requires particular skill and preparation.  In order to save time, most Judges will permit the witness to be ‘led’ on uncontroversial or agreed matters.  However, the practitioner must exercise considerable care when eliciting evidence on the key areas in dispute.   It is recommended that the advocate obtains in advance an ‘eyes only’ written summary of the evidence that the relevant witness(es) intend to give and uses that as an aide-memoire to ensure that all relevant areas are covered ‘in chief.’

In Scotland, witnesses are obliged to remain in their respective waiting rooms until called forward to give their evidence.  In some cases, this may mean that the opposing advocate may not know the identity of the next witness to be called until he or she walks in through the door!  This is precisely what happened to me in my first Scottish ET case, when I was given no forewarning as to the identity of the Respondent’s key witness in a test case with a value of several million pounds concerning contractual arrangements for Glasgow City Council workers. 

There are, of course, other differences in both procedure and terminology.  One of the first questions asked of me by a Scottish ET Judge was whether I had any “further productions.”   It took me a while to appreciate that he was referring to disclosure. 

As we know Employment Tribunals have (limited) jurisdiction in matters of contract.   Given that there are some important cross-border differences in contract law (albeit mainly in terminology), it is nevertheless important that the advocate, before he or she appears in Scotland, identifies any such issues and plans accordingly.  Otherwise, the uninitiated may find themselves confused by unfamiliar concepts such as ‘interdict’; ‘caveat’ or ‘personal bar.’

My overall view is that both Tribunal systems could borrow and benefit from the other.  The Scottish practice of keeping witnesses out of the Tribunal until called forward to given evidence is a sound one which lends robustness to the quality of oral testimony (particularly where the facts are hotly contested). 

On the other hand the English practice of exchanging witness statements (and having the same stand as evidence in chief) permits the Tribunal and advocate to ‘cut to the chase’ and substantially reduces the time taken to hear and dispose of the case.  Although the involvement of lawyers in the drafting of such statements is often to be deprecated, this practice is indispensable as a time-saving measure.

For those about to ‘cross the border’ in a professional capacity for the first time, take time to prepare but be ready to adapt to changing circumstance.

Edward is Head of the Employment Team at Dere Street Barristers and regularly appears in both the Scottish Employment Tribunals and EAT. He also sits as a fee-paid Employment Judge.