Introduction

Anwar v The Advocate General for Scotland ([2021] UKSC 44) is a landmark judgment delivered by the United Kingdom Supreme Court on October 13, 2021. The case centers on Ms. Anwar’s claim against the United Kingdom Government, alleging failure to effectively implement EU Equality Directives, specifically regarding the availability of interim remedies for workplace harassment based on sex, race, and religion.

Ms. Anwar, employed by Roshni, a charity focused on protecting children and young adults within ethnic minority communities, experienced harassment from her employer. After successfully obtaining compensation from an employment tribunal, she faced challenges in enforcing the award due to her employer's alleged dissipation of funds. Ms. Anwar sought to secure her compensation by freezing her former employer’s bank accounts through a mechanism absent in the employment tribunal’s jurisdiction.

The core legal issues revolved around whether Scottish courts possess the ancillary jurisdiction to grant interim remedies for claims pursued in employment tribunals, and if the procedural requirements align with EU principles of effectiveness and equivalence under the Equality Directives.

Summary of the Judgment

The United Kingdom Supreme Court upheld the decisions of the Inner House of the Court of Session, confirming that Scottish courts retain the ancillary jurisdiction to grant warrants for diligence on the dependence of actions pursued in employment tribunals. The judgment emphasized that requiring claimants to initiate separate proceedings in the sheriff court does not breach EU principles of effectiveness or equivalence.

The Court rejected Ms. Anwar’s arguments that the procedural hurdles imposed by existing Scottish law rendered her EU rights practically impossible or excessively difficult to exercise. Additionally, the Court found no violation of the principle of equivalence, as employment tribunal procedures did not treat EU law-based claims less favorably compared to domestic law claims.

Consequently, the appeal was dismissed, affirming the judiciary's role in balancing procedural safeguards with effective enforcement of compensation awards under EU law.

Analysis

Precedents Cited

The judgment extensively referenced both historical and contemporary case law to substantiate the court’s decision. Key precedents include:

• Hawkins v Wedderburn (1842) and Fordyce v Bridges (1842): These foundational cases established that Scottish courts possess the competency to grant interim security for claims pursued in foreign or separate proceedings without adjudicating the merits of those claims.
• Impact v Minister for Agriculture and Food (2006): Emphasized the EU principle of effectiveness, mandating member states to provide sufficient remedies to ensure effective legal protection of EU rights.
• Factortame (No 2) (1990) and Unibet (London) Ltd v Justitiekanslern (2005): Highlighted the necessity of allowing national courts to grant interim relief to uphold the primacy and effectiveness of EU law.
• Kri an v Slovensk in pekcia ivotn ho prostredia (2010): Affirmed the entitlement to interim relief within the framework of EU directives.
• R (UNISON) v Lord Chancellor (2017): Demonstrated the significance of effective enforcement mechanisms under EU law.

These precedents collectively underscored the judiciary's obligation to facilitate effective remedies, forming the basis for the Court's affirmation of ancillary jurisdiction in the present case.

Legal Reasoning

The Supreme Court's reasoning hinged on two central EU principles: the principle of effectiveness and the principle of equivalence.

• Principle of Effectiveness: Article 19(1) of the Treaty on European Union (TEU) and Article 47 of the EU Charter of Fundamental Rights mandate member states to ensure effective legal protection for rights derived from EU law. The Court examined whether the procedural requirement for claimants to seek interim remedies via Scottish courts posed an undue barrier. It concluded that while additional steps are necessary, they do not render the remedy excessively difficult or impossible, thereby satisfying the principle of effectiveness.
• Principle of Equivalence: This principle ensures that EU law-based claims are treated no less favorably than analogous domestic law claims. The Court determined that the ancillary procedures for EU-based employment discrimination claims were comparable to those for domestic claims, thereby upholding equivalence.

The Court also addressed concerns regarding legal certainty and precision, determining that existing case law and statutory provisions provided sufficient clarity for claimants to navigate the process.

Impact

The judgment has significant implications for the enforcement of Equality Directives within the UK legal framework:

• Affirmation of Ancillary Jurisdiction: The ruling reinforces the ability of Scottish courts to offer interim remedies for claims lodged in employment tribunals, ensuring that claimants have effective avenues to secure compensation.
• Balancing Procedural Safeguards and Access to Justice: The decision maintains a balance between necessary procedural steps and the accessibility of remedies, preventing potential abuse while safeguarding claimants' rights.
• Guidance for Future Cases: Courts now have a clearer framework for handling similar cases, emphasizing adherence to EU principles while applying domestic procedural requirements.
• Encouragement of Effective Enforcement Practices: By upholding the necessity of ancillary actions, the judgment encourages legal practitioners to proactively seek interim remedies, thus enhancing the enforceability of tribunal awards.

Overall, the judgment strengthens the enforcement mechanisms for Equality Directives, promoting a more robust protection of equal treatment rights in employment contexts.

Complex Concepts Simplified

Conclusion

The Anwar v The Advocate General for Scotland judgment serves as a pivotal affirmation of the Scottish courts' ancillary jurisdiction to grant interim remedies for claims pursued in employment tribunals under EU Equality Directives. By meticulously balancing procedural requirements with the necessity for effective legal protection, the Supreme Court reinforced the principles of effectiveness and equivalence, ensuring that claimants retain robust avenues to secure their rights and compensation.

This decision not only upholds the integrity of the Equality Directives within the UK legal system but also provides clear guidance for future cases involving the enforcement of EU-based rights in specialized tribunals. The judgment underscores the judiciary's role in facilitating access to justice while maintaining necessary safeguards against potential abuses, thereby contributing to a more equitable and enforceable framework for employment-related discrimination claims.

In the broader legal context, the case exemplifies the harmonious interplay between national and EU law, highlighting the ongoing commitment to uphold fundamental rights and ensure their practical enforceability within member states' jurisdictions.