Cecily Zamora
Scotland has always been proud of its distinct legal system, and while employment law in Scotland is largely similar to that in England, there are some differences. These differences are fewer than in other areas of law, largely because so many of the rules are statutory in nature. However, key differences exist, such as the fact that in Scotland, a contract is formed when there is an unqualified acceptance of an unqualified offer and both parties have the intention of creating a legal relationship. This is in contrast to England, where a contract is formed as soon as the essential terms are agreed upon, even if the finer details are not yet settled. Witness statements are generally not used in Scotland, and there are different time limits for equal pay claims.
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What You'll Learn
Contracts and settlement agreements
While employment law in Scotland and England is largely drawn from the same sources, there are some differences in the specific laws and procedures that apply in each jurisdiction. One notable difference is the treatment of contracts and settlement agreements.
In Scotland, a contract is formed when there is an unqualified acceptance of an unqualified offer, and both parties intend to create a legal relationship. This differs from English law, where a contract is formed once the essential terms are agreed upon, even if the finer details are not yet finalised. This distinction is important in the context of employment contracts, where Scottish law requires a mutual agreement on all terms before a contract is considered valid.
Another difference lies in the execution of contracts. In Scotland, it is not currently valid to sign contracts by way of counterpart, meaning that all parties must sign at least one copy of the agreement. This differs from English law, where multiple counterpart agreements signed by different parties can result in a binding agreement. However, it is worth noting that this is expected to change in Scotland, bringing it in line with English law and allowing remote signing of settlement agreements and contracts of employment.
The Contract (Rights of Third Parties) Act 1999, which applies in England and Wales, does not extend to Scotland. Instead, common law governs when and how third parties may acquire rights under a contract to which they are not a party. This difference can have implications for employment contracts, particularly when considering the rights of individuals who are not direct signatories to the agreement.
In terms of dispute resolution, there are variations in the procedures followed by Scottish and English courts. When considering whether to grant an interim interdict in Scotland, the court applies a test that assesses whether the party seeking the interdict has a prima facie case and whether the balance of convenience favours them. In England, the test focuses on whether granting the interdict would be just, convenient, and proportionate. These differences in legal tests can impact the strategies employed by lawyers when dealing with employment matters in each jurisdiction.
Finally, there are differences in the time limits for certain types of claims. In Scotland, claims for breach of contract have a prescription period of five years from the date the obligation becomes enforceable under the Prescription and Limitation (Scotland) Act 1973. In contrast, England and Wales have a limitation period of six years for such claims under the Limitation Act 1980. These time limits can significantly impact an employee's ability to pursue legal action for breach of contract or wrongful dismissal in each jurisdiction.
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Interim interdicts
While employment law in Scotland and England is largely drawn from UK legislation, case law, and EU law, there are some differences between the two jurisdictions. One such difference lies in the tests applied by Scottish and English courts when considering whether to grant an interim interdict, which is a type of court order that temporarily prevents someone from breaching another person's rights.
In Scotland, an interim interdict is a discretionary remedy granted by the court to prevent a wrong that is being committed or is anticipated to be committed, violating a party's rights. The test for a Scottish court to apply when considering whether to grant an interim interdict involves assessing whether the party seeking the interdict has a prima facie case and whether the balance of convenience favours the party seeking relief. This means that the court will consider if there is a substantial question to try and if the matter is urgent. Additionally, proceedings for an interim interdict in Scotland can move quickly, with parties sometimes receiving as little as 24 hours' notice before a hearing. It is important to note that an interim interdict is obtained at the claimant's risk, and if the order is later recalled, damages for wrongful interdict may be substantial.
In contrast, the English procedure focuses on whether granting the interim injunction would be just and convenient and whether it would be proportionate. While the tests differ, they consider similar factors. It is crucial for practitioners to be aware of these differences when dealing with employment matters in Scotland and England to ensure compliance with the relevant jurisdiction's requirements.
The enforcement of restrictive covenants is another area where Scottish and English employment laws differ. In Scotland, there is no requirement for consideration for restrictive covenants to be enforceable, whereas this can be an area of dispute in England. This difference can impact the likelihood of obtaining an interim interdict or injunction in each jurisdiction.
In summary, while Scottish and English employment laws share many similarities, key differences exist, particularly in the area of interim interdicts and the enforcement of restrictive covenants. These distinctions highlight the importance of seeking proper advice and ensuring awareness of the specific laws and procedures applicable in each jurisdiction.
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Bank holidays
While there is no statutory right for employees to take bank holidays off work, Scottish employees are entitled to a minimum of 28 days of annual leave per year, including 9 bank holidays. This is because Scotland observes 9 bank holidays, whereas England and Wales observe 8. These 9 bank holidays are usually on Mondays.
In England, bank holidays are often automatically considered public holidays as most workers are given the day off. However, in Scotland, whether or not employees are allowed to take a bank holiday off work varies from employer to employer and is less uniform. Most employment contracts in Scotland provide an entitlement to a mix of bank and local holidays.
It is important to note that if an employee is required to work on a bank holiday as per their employment contract, they cannot refuse to work, even for religious reasons. However, employers should be cautious about granting leave for bank holidays with religious significance to avoid potential allegations of indirect religious discrimination.
Part-time workers are entitled to a pro-rata amount of leave compared to their full-time counterparts. It is recommended that employers provide the full entitlement of leave to part-time workers and inform them that if a bank holiday falls on their normal working day, they must use one of their holidays on that day.
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Time limits for equal pay claims
While employment law in Scotland and England is largely similar, there are some differences. One notable difference is the time limit for equal pay claims.
In England, an equal pay claim must generally be lodged within six months of the end of an individual's employment. This is the same in Scotland, where a six-month time limit also applies. However, there is a difference when it comes to the maximum amount of back pay that can be claimed. In England and Wales, employees can claim up to six years of back pay, whereas in Scotland, the maximum amount of back pay that can be claimed is five years.
It is important to note that these time limits may be subject to certain exceptions or variations depending on the specific circumstances of each case. For example, if an employee has been employed under multiple contracts, they may not need to bring a claim at the end of each contract if they were in a stable working relationship throughout their employment. In such cases, the time limit will start running at the end of the stable working relationship.
Additionally, even if the time limit for filing an equal pay claim with an employment tribunal has passed, individuals may still have other options for seeking redress. In both England and Scotland, it may be possible to bring a breach of contract claim in the civil courts within six years after the breach (or five years in Scotland).
Given the potential complexities and time-sensitive nature of employment law claims, it is always advisable to seek specific legal advice as early as possible to understand your rights and options.
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Apprenticeship funding
Graduate Apprentice learning costs are funded by the Scottish Funding Council and Student Awards Agency Scotland (SAAS), covering the full duration of the programme. Foundation Apprenticeships, on the other hand, are unpaid as they are aimed at students in the last two years of school.
Employers in Scotland can use apprenticeship funds for a wider range of vocational training programmes, not just apprenticeship training as is the case in England. Additionally, Scotland has introduced initiatives like the Flexible Workforce Development Fund to support employers in upskilling and re-skilling their staff.
In England, apprenticeship funding is accessed through the employer's apprenticeship service account, with the amount of funding linked to the employer's pay bill and the number of employees living in England. The funding rules in England cover redundancies that occur after a certain date, irrespective of the apprentice's start date.
Both Scotland and England have a range of apprenticeship levels, from foundation or school-level up to graduate-level apprenticeships. Apprentices in Scotland are entitled to the same payments as other employees, including at least the National Minimum Wage, and they can only be dismissed or made redundant in limited circumstances.
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Frequently asked questions
Yes, there are some differences between the two jurisdictions' employment laws. For instance, in Scotland, a contract is formed when there is an unqualified acceptance of an unqualified offer, and both parties intend to create a legal relationship. In England, a contract is formed once the essential terms are agreed upon, even if the finer details are not yet decided.
The Scottish tribunal system is separate from England's, though there is some interaction between the two. In Scotland, witness statements are generally not used, and verbal evidence is given instead. In England, witness statements are used.
Yes, the school leaving age is different in Scotland, which affects the National Minimum Wage laws. In England and Wales, individuals are entitled to the National Minimum Wage from the last Friday of June in the school year they turn 16.
Yes, there are some differences in the enforcement of employment laws. For example, in Scotland, claims for breach of contract prescribe five years after the date the obligation becomes enforceable under the Prescription and Limitation (Scotland) Act 1973. In England and Wales, the limitation period is six years under the Limitation Act 1980.
