Anwar v The Advocate General for Scotland (Scotland) [2021] UKSC 44

Ms Anwar suffered workplace harassment and obtained an employment tribunal award against her former employer, but could not recover payment as the employer allegedly dissipated funds. She claimed the UK failed to implement EU Equality Directives by not enabling employment tribunals to grant interim diligence. The Supreme Court held Scottish courts could grant such warrants in ancillary proceedings and this did not breach EU effectiveness principles.

Facts

Ms Anwar was employed by Roshni, a charity protecting ethnic minority children from abuse. In September 2015, she commenced employment tribunal proceedings against her former employer and her line manager, Mr Ali Khan, alleging workplace harassment on grounds of sex, race, and religion contrary to section 26 of the Equality Act 2010. The tribunal upheld her claims in July 2016 and awarded her £74,647.96 in August 2016.

Following the award, Ms Anwar received information that those controlling Roshni proposed to close the charity and transfer funds to a new charity to avoid paying her award. Although she obtained an interim interdict from the sheriff court and later arrested funds in execution, only £2,967.32 was recovered. Bank statements showed Roshni had over £68,000 in August 2016, but by October 2016 the account had fallen to approximately £4,000.

Issues

First Issue

Whether the Court of Session or sheriff court has power to grant a warrant for diligence on the dependence of an application to the employment tribunal by a worker alleging unlawful workplace discrimination or harassment.

Second Issue

If such courts have that power, whether the requirement for an applicant to raise separate court proceedings constitutes a breach of EU law principles of effectiveness or effective remedy.

Third Issue

If those courts do not have such power, whether this constitutes a breach of EU law.

Judgment

On the First Issue

The Supreme Court held that both the Court of Session and the sheriff court have jurisdiction to hear an ancillary action and grant a warrant for diligence on the dependence, thereby providing security for claims pursued in other proceedings including employment tribunals.

Lord Hodge, delivering the unanimous judgment, relied upon the authoritative decision in Hawkins v Wedderburn (1842) 4 D 924, where the whole Court of Session established this ancillary jurisdiction:

I go distinctly on the principle, that I think a party is entitled to raise and keep up an action for the very purpose of securing himself by ultimate payment, although he may not be in a condition … to follow out the action at the time, but must wait the decision of another tribunal

The Court rejected the argument that Part 1A of the Debtors (Scotland) Act 1987 had superseded this common law jurisdiction, holding that these statutory provisions were concerned with aspects of court procedure and matters the pursuer must establish, not with abolishing the ancillary jurisdiction.

On the Second Issue

The Court held that requiring a claimant to raise an ancillary action in the sheriff court to obtain diligence on the dependence did not breach the EU principle of effectiveness or the principle of effective judicial protection.

Lord Hodge stated:

the expense and procedures involved in obtaining a warrant for diligence on the dependence in the sheriff court do not make the exercise of a claimant’s rights derived from EU law ‘impossible in practice or excessively difficult’.

The Court emphasised that diligence on the dependence is a draconian remedy with potential to disrupt or destroy an employer’s business by freezing its assets. The modest additional hurdles of sheriff court fees (£183), preparation of straightforward pleadings, and potential exposure to adverse expenses were proportionate protections for the rights of others.

On the Principle of Equivalence

The Court unanimously rejected the breach of equivalence argument. The correct comparator was another employment-related claim based on domestic law (such as unfair dismissal), not an EU-derived claim in the sheriff court. Since employment tribunals cannot grant warrants for diligence for either EU-derived or domestic law claims, there was no breach of equivalence.

Implications

This judgment confirms that Scottish courts retain an ancillary protective jurisdiction to support claims in other forums, including employment tribunals, through diligence on the dependence. This jurisdiction, established in 1842 case law, was not superseded by the 2007 amendments to the Debtors (Scotland) Act 1987.

The decision clarifies the application of EU law principles of effectiveness and effective judicial protection to domestic procedural requirements. While EU law mandates availability of interim measures, it does not require these to be provided by the same tribunal determining the substantive claim. The requirement to use ordinary courts for such protective measures, with associated costs and procedures, does not make exercising EU-derived rights excessively difficult where those requirements are proportionate.

The judgment also addresses the wider problem of enforcement of employment tribunal awards, acknowledging disappointing statistics regarding non-payment, whilst holding that more effective interim remedies may be only part of any solution to these systemic issues.

Verdict: Appeal dismissed. The Court held that the Court of Session and sheriff court have power to grant warrants for diligence on the dependence in ancillary actions supporting employment tribunal claims, and that this requirement does not breach EU law principles of effectiveness, effective judicial protection, or equivalence.

Source: Anwar v The Advocate General for Scotland (Scotland) [2021] UKSC 44