Ms Anwar had already won her workplace harassment claim. Her difficulty was collecting the award. She argued that EU law required the Scottish employment tribunal itself to be able to preserve assets while a claim was pending, rather than requiring a separate application in another court.
The claim
This appeal arose from Ms Anwar’s petition for judicial review against the Advocate General for Scotland, representing the Secretary of State for Business, Energy and Industrial Strategy. An employment tribunal had already upheld her harassment claim. She did not ask the Supreme Court to retry it. She said the United Kingdom had failed properly to implement three EU Equality Directives because an employment tribunal in Scotland cannot grant warrant for arrestment on the dependence, an interim remedy which can freeze money in a bank account. She wanted to have been able to obtain that warrant when, or after, her tribunal claim began, and sought a declarator that the omission was unlawful and damages for it.
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Lord Hodge, with whom the other Justices agreed, explained the EU principles in issue. Member states must provide effective remedies for EU-law rights and equivalent remedies for comparable domestic claims. National procedure must not make those rights practically impossible or excessively difficult. It was agreed that some interim-measures procedure is required. State liability in damages also requires a right conferred on individuals, a sufficiently serious breach and a direct causal link, but the appeal turned on whether there was a breach at all.
The award and the missing funds
The employment tribunal had upheld Ms Anwar’s harassment claim against her former employer and a former line manager. Those findings were not challenged in this appeal.
She had feared that there would be insufficient assets to meet an award. By the time enforcement was attempted, only a small part of the amount awarded was recovered.
The Court was not deciding that the employer had deliberately dissipated assets. The issue was what interim protection had been available under Scots law.
Protective diligence and the courts below
Arrestment on the dependence freezes moveable property or money held by a third party and creates a preferential right over it. Inhibition restricts dealings with heritable property. Automatic diligence was criticised and, in Karl Construction Ltd v Palisade Properties plc, automatic inhibition was held to breach the defender’s Convention rights. Part 1A of the Debtors (Scotland) Act 1987 now requires a prima facie case, a real and substantial risk that insolvency or dealings with assets would defeat or prejudice enforcement, and that the warrant is reasonable. The action must conclude for payment of a sum other than expenses, and the warrant is granted by the court before which that action depends.
A Scottish employment tribunal cannot grant this diligence. Work-related discrimination claims go exclusively to the tribunal, whereas the sheriff court hears many other discrimination claims and can grant diligence in the same action. A tribunal payment order can be enforced without a further court action.
Lord Tyre refused the petition. He held that the Court of Session and the sheriff court can entertain an action brought only to obtain diligence securing a claim decided elsewhere, and that the extra action was not excessively difficult. A majority of the Inner House agreed. Lord Carloway dissented: he considered that diligence was available only in an action in that court seeking payment, that the tribunal’s jurisdiction was exclusive, and that a separate application would be excessively difficult because of legal advice, court fees of more than £175 and possible liability for the employer’s expenses.
The Supreme Court’s reasoning
On the first issue, Lord Hodge held that the ordinary courts do have the power. Hawkins v Wedderburn and Fordyce v Bridges upheld Scottish actions raised only to secure property for claims being decided in England, although the Scottish court was not to decide the merits. Later authority recognised the same practice in support of arbitration. The 2007 provisions regulate what must be proved; they are not a complete code and do not abolish an ancillary action which itself concludes for payment. The court can take a broad view of the prima facie case, as it does where an arbitrator will decide the merits. The first challenge failed, so the question whether a complete absence of power would breach EU law did not arise.
Nor does the need for a separate sheriff-court application breach effectiveness or effective judicial protection. EU law does not require one body both to decide the claim and to grant interim measures, and it does not require this jurisdiction to be restated in legislation. The jurisdiction is established by authoritative case law and discussed in standard legal works. The Equality Directives require enforcement procedures and effective sanctions or compensation, but the interim-measures requirement comes from the Treaty, the Charter and case law, and may sit in the general law.
Diligence is draconian and is available only if the statutory tests are met. The additional sheriff-court hurdles are fees, a short writ, and possible adverse expenses if the application is unreasonable, unsuccessful, or later recalled or restricted. A solicitor’s estimate, received for the first time in the Supreme Court and considered because it was not disputed, put sheriff-court dues at £183, solicitor’s fees at £900 including VAT, officers’ fees at £319.32 including VAT, and registration of an inhibition at £25. Only the dues, part of the drafting cost and service of the writ would be avoided if the tribunal could grant the warrant and the claimant still wanted representation. Those steps do not make the EU right practically impossible or excessively difficult. If treated as a limitation on the Charter right to an effective remedy, the route is lawful, respects the essence of the right to compensation and is proportionate. Wider non-payment statistics did not identify tribunal diligence as the cause, and damages still required a causal link. On these facts, diligence at the outset would probably not have been justified, because the accounts suggested solvency, and substantial funds remained after liability was upheld.
Equivalence compares an EU-derived right with a similar domestic claim. The correct comparator is another tribunal claim based on domestic law, such as unfair dismissal, not a discrimination claim in the sheriff court. The tribunal can grant diligence in neither case, so there is no less favourable treatment.
Verdict: The Supreme Court unanimously dismissed the appeal. The Scottish civil courts could grant protective diligence in support of a tribunal claim where the statutory requirements were met. Having to apply there did not breach the EU principles relied upon. No damages were awarded against the government.
Source: Anwar v The Advocate General for Scotland [2021] UKSC 44
