Does the EU principle of effectiveness require the employment tribunal to have powers to freeze assets, rather than having to make a separate claim in the civil courts?
No, held the Court of Session in AA v BEIS.
AA succeeded in a tribunal claim for over £75,000 against her former employer for discrimination. Her legal advisers found out that the employer was planning to disperse its assets to frustrate recovery. AA got an order provisionally freezing those assets, but all but £4,000 had been disposed of by then.
AA started judicial review proceedings arguing that the fact the tribunal could not make orders freezing assets infringed the EU law principle of effectiveness. She argued an order from the tribunal would have been effective much sooner and been cheaper; a separate claim to freeze assets would make accessing her rights excessively difficult.
Dismissing the petition for judicial review, Lord Tyre held:
"In my opinion the absence of a power to grant an interim interdict [the Scots law equivalent of a freezing order in England & Wales] in the employment tribunal, taken together with the availability of interim protection in the sheriff court (or Court of Session), does not constitute [an excessive] limitation...The question is...whether that requirement [to issue a separate claim] renders the exercise of the right practically impossible or excessively difficult...In my opinion the need to seek interim protection in a court, rather than in the tribunal, does not breach that principle."
Lord Tyre also dismissed the arguments that the EU Charter of Fundamental Rights required a different outcome.
Thanks to Matthew Jackson of 10 KBW for preparing this case summary.