Tied up or tied down?
Simplifying the complex – red tape and employment law
This is the third in our series of blogs about the ‘Red Tape Reduction’ consultation. In this blog, we look at the dangers of reliance upon simplified guidance published by the Government on new legislation.
People get in a muddle about the effect of explanations and guidance on employment law. New clients simply do not understand how it is that they can follow Government guidance (as far as they can tell) and yet they can still lose in a tribunal.
Our legal system works on the basis that Parliament makes new law (statutes/Acts of Parliament, and regulations), and the courts and tribunals interpret and apply that law to particular situations. Government guidance notes do not have a status in this. It is true that some Codes of Practice are given effect by statute, and are to be taken into account by a court or tribunal hearing a case. The ACAS Code on discipline and grievance is an example of this. But in general, the court/tribunal has to apply the law as written, and will not apply guidance notes on Government websites. This is confusing to the uninitiated, but has the useful effect of preventing our laws from being rewritten by civil servants without the scrutiny of Parliament.
There have been several spectacular incidents of Government guidance being pulped (at a cost of millions) where the explanations have been simply wrong. Having advised clients during those times, they have been understandably mystified by how, even though they followed official guidance, they turned out to be in the wrong. Equally, it has seemed more than unfair to them that they are required to comply with laws that no-one in the Government can adequately or accurately explain!
It is not unknown for Government departments themselves to be in breach of UK employment law (not just the guidance), and it is clear that there is a lot of unnecessary pain and confusion about the status, clarity, relevance and accuracy of guidance notes.
Only appeal decisions bind lower courts, so there is an inevitable gap between when new laws are passed and when they are interpreted. And we do not have any system of judges deciding theoretical cases to clarify ambiguous law – there must be a real case brought about an actual situation. So, given the time that cases take to work their way through the system, it can take anything from two years to more than a decade for a particular statutory provision to get the attention of an appeal court and for binding precedent to be established to interpret it.
We often have to tell our clients “Nobody knows the answer to this question, but our best guess, given what has gone before is …..” I have never seen a set of ‘guidance’ that is honest enough to say this. What would be the reaction if this were published? Employers like certainty and predictability (at least until they want flexibility and choice!). It’s not easy to live in a world where non-compliance costs time and money, but no-one can say for sure exactly what “compliance” requires. This is one reason why we see “best practice inflation” – which is the inaccurate overstatement of what the law requires … ‘just to be on the safe side’. But it’s not ‘safe’ to load business with excess cost or unnecessary hurdles.
The reality is that running a business involves risk. Judging where you are and where you should be on employment law is just one of many risks, from deciding who to give credit to, what to invest in and many more. There is no real certainty about anything, and we have to hone our decision making and risk assessment skills and bring them to bear on employment law as we do to everything else.
For our earlier blogs in the ‘red tape’ series, click here for our discussion on whether we are over-regulated, and click here for our discussion on how far we can repeal current legislation.
Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060
Website : www.irenicon.co.uk
You can follow Annabel on Twitter
Pingback: Bonfire of the delusion – do we have the power to repeal employment law? | Employment law in a mad world
Pingback: Bribery and corruption …. | Employment law in a mad world
Pingback: What I say, or what I mean? Red tape and employment law | Employment law in a mad world
Pingback: Red tape and fairness | Employment law in a mad world