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Employment law in an independent Scotland

Following yesterday’s launch of the Scottish Government’s White Paper ‘Guide to an Independent Scotland’, what do we now know about how employment law might develop if the yes vote is secured next year?

The proposed changes to employment law

With independence, powers over employment legislation would transfer from Westminster to Scotland. It appears that the Scottish Government is proposing to adopt existing UK employment legislation, tweaking it where necessary to reflect its business aspirations for Scotland.

The White Paper highlights the following as being central elements of employment law policy. These are all SNP proposals, and so whether they will come into force depends on both a yes vote and the SNP succeeding in the first post-independence Scottish Parliament elections.

  • The minimum wage would rise at least in line with inflation (a Fair Work Commission would advise the Scottish Government on the appropriate rate); while the Living Wage campaign would be fully supported.
  • The Scottish Government would work directly with trade unions and the business community, particularly to encourage wider trade union participation and because it believes that collective bargaining can play a positive role in improving labour market conditions.
  • Consultation would take place on the best form of employee representation on company and public boards, together with a commitment to encourage female participation. The Scottish Government would consult on appropriate targets and legislate if necessary.
  • Some of the recent changes to employment protection introduced by the Westminster government would be reversed. For example, the Scottish Government plans to restore the 90 day consultation period for redundancies affecting 100 or more employees; and would abolish the recently introduced shares for rights scheme.
  • On independence, all the rights and protections which individuals currently have under existing equality and human rights legislation would continue. In addition, they would be embedded in a written constitution.
  • The Scottish Government wants Scotland to remain in the Common Travel Area, in which case there would be no need for border checks. A new immigration system would be developed which would include a points based approach targeted at particular Scottish circumstances.

The White Paper also lists zero-hours contracts and access to employment tribunals as key issues but does not provide any further detail.

The impact of European Union membership

The Scottish Government has confirmed that it wishes Scotland to be a member of the European Union. Rather than happening automatically, an independent Scotland would have to negotiate to become a member. For further details on how this would work in practice, see the post on our Public Law blog.

EU laws underpin the terms and interpretation of national employment law, for example in terms of the Equal Treatment Directive (discrimination); the Working Time Directive (holidays and rest breaks); and the Acquired Rights Directive (TUPE). Therefore, assuming that Scotland is permitted to join the EU, the Scottish Government would not be able to make wholesale changes to current employment legislation.

Brodies’ seminar on independence and the referendum

If you have any queries on the White Paper and the constitutional debate generally, please sign up to attend one of our Public Law Team’s seminars running next week in Aberdeen, Edinburgh and Glasgow. Extra spaces have been made available in response to high demand, so you can still sign up here.

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