The potential employment law implications for an independent Scotland

Paul Kelly

Paul Kelly

The movement for Scottish independence is currently dominating the media with the long anticipated vote now just a day away.

The Scottish National Party has come forward with a set of proposals that would alter many areas of employment law in Scotland should the Yes vote find a majority amongst the Scottish voters.

Although little seems likely to change in the immediate aftermath of a Yes vote, the Scottish Government has released a White Paper outlining its plans for a more worker centred approach to employment law.

Most significantly, the pro-independence movement has promised the introduction of the Fair Work Commission (that will have the aim of keeping wages at the very least in line with the rise of inflation) with further hints that the living wage could become a reality in the newly independent nation.

Furthermore, this commission will extend the power of trade unions (particularly the Scottish Trade Union Centre) by actively encouraging their consultation and involvement in the governmental  decision making process in areas as diverse as the minimum wage and individual rights. An independent Scotland would likely abolish the controversial ‘shares for rights’ Employee Shareholder status and introduce a target (potentially through legislation) to ensure female representation on company boards, in line with the Scottish National Party’s commitment to promote an equality of opportunity in the workplace. This is likely to be accompanied by the proposed National Convention on Employment and Labour Relations which will seek to include the wider public in discussions about changes within the labour market, skills shortages and policy initiatives.

Notably though, there has been no clear indication that zero-hour contracts are set for certain to be abolished. Whilst many will make assumptions about the direction a newly independent Scotland might take over such contracts, there remains a level of uncertainty, particularly as there is no guarantee which party would be in charge following the newly independent nation’s first elections.

The Scottish Government’s commitment to adhere to EU employment laws, including the free movement of labour around Europe, equality law and pension law is also contingent on an independent Scotland successfully applying for EU membership. Acceptance is by no means guaranteed.

It seems however that tribunal hearings (which have always been run very differently in Scotland from England and Wales) are likely to remain the same in an independent Scotland, except that the Scottish Tribunal Service would be likely to take over the functions of the Ministry of Justice, without a significant change to the tradition of an advocacy based hearing.

It is clear that should Scotland decide to become independent, there are certain to be implications for employment law.  It seems very likely that Scotland will in some ways move back towards a worker based focus but the specifics at this time remain vague.

We, with the rest of the UK, wait in expectation for the outcome of the vote on Thursday that will decide Scotland’s future.

Paul Kelly
Partner
Employment Department
Pkelly@LawBlacks.com
0113 227 9249
@PaulLawBlacks

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