Anwar v The Advocate General for Scotland

A Scottish court may entertain an ancillary action and grant diligence on its dependence to secure a monetary discrimination or harassment claim being pursued before an employment tribunal. The action must seek payment and satisfy the statutory safeguards governing diligence.

EU law requires interim protection but does not require the tribunal deciding the merits to provide it. Requiring a separate sheriff court action is proportionate and does not make enforcement practically impossible or excessively difficult. Case law can also provide sufficiently clear and precise rules. The principle of equivalence is satisfied because EU-derived and domestic employment claims before the tribunal are subject to the same procedure.

The appellant obtained an employment tribunal award for workplace harassment under the Equality Act 2010. Most of her former employer’s funds were unavailable when she sought to enforce the award. She claimed that the United Kingdom had failed properly to implement EU equality law because Scottish employment tribunals could not grant arrestment on the dependence to preserve assets.

The Outer House refused her petition: [2018] CSOH 54. A majority of the Inner House upheld that decision: [2019] CSIH 43; 2020 SC 95. The Supreme Court considered whether Scottish courts could grant diligence in an ancillary action supporting tribunal proceedings and, if so, whether requiring that separate action breached the EU principles of effectiveness, effective judicial protection, legal certainty or equivalence.

1. Appeal dismissed unanimously. Lord Hodge delivered the judgment, with which Lord Lloyd-Jones, Lord Briggs, Lord Leggatt and Lord Burrows agreed.

2. The Court of Session and sheriff court possess a common law jurisdiction to entertain an action ancillary to proceedings in another forum. They may grant diligence on the dependence of that ancillary action to secure a claim being determined elsewhere, even though they cannot determine its merits. Hawkins v Wedderburn and Fordyce v Bridges remained authoritative and were consistent with modern decisions concerning arbitration.

3. Part 1A of the Debtors (Scotland) Act 1987 did not abolish that jurisdiction. An ancillary action seeking payment satisfies section 15A. The court may take a broad view of whether the claimant has a prima facie case, although the employment tribunal will decide the merits. A warrant remains subject to the statutory requirements concerning the merits, risk to enforcement and overall reasonableness.

4. EU law requires an interim-measures procedure capable of protecting rights derived from the Equality Directives. It does not require a single tribunal both to decide the merits and to grant every interim remedy. The authorities concerning suspension or disapplication of national measures did not establish such a requirement for protective attachment of assets.

5. The governing effectiveness test remained whether domestic procedure made the exercise of EU rights practically impossible or excessively difficult. Requiring a straightforward sheriff court action, payment of court fees and possible exposure to expenses was a modest and proportionate departure from the employment tribunal regime. Diligence can seriously disrupt a defender’s business, so judicial safeguards were justified. The procedure also met articles 47 and 52 of the Charter of the Fundamental Rights of the European Union.

6. The ancillary jurisdiction was sufficiently clear and accessible when assessed from the standpoint of an informed lawyer. A rule does not lack the precision required by EU law merely because it derives from authoritative case law.

7. There was no breach of equivalence. The proper comparison was between EU-derived and domestic employment claims before the employment tribunal. Neither category permitted the tribunal itself to grant diligence on the dependence.

2. United Kingdom Supreme Court: Dismissed the appeal unanimously and affirmed the Inner House: [2021] UKSC 44.
3. Inner House of the Court of Session: By majority, upheld the Lord Ordinary’s refusal of the petition: [2019] CSIH 43; 2020 SC 95.
4. Outer House of the Court of Session: Lord Tyre refused the petition for judicial review: [2018] CSOH 54.