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.
Employers simply do not understand how they can follow Government guidance and lose in a tribunal.
What’s going on?
Some Codes of Practice are ‘statutory codes’ and are taken into account by a court or tribunal hearing a case. The ACAS Code on discipline and grievance is an example of this.
What about government guidance on how to comply?
In general, the court/tribunal will not apply guidance or explanatory notes on Government websites.
This 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.
Employers have been understandably mystified by how, even though they followed official guidance, they were wrong.
It seems unfair 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 to breach 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.
Appeal decisions are the most reliable guidance
Only appeal decisions bind lower courts, so there is an inevitable gap between when Parliament makes new laws and when the appeal courts get to make decisions. There must be a real case brought about an actual situation and the losing party has to decide to appeal.
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 interpret it.
Fewer appeals mean less guidance
The new system of charging for employment tribunals and employment appeal tribunal claims can only make it take longer for case-law to develop around new laws .
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?
Compliance inflation gives certainty
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’.
It’s not ‘safe’ to load business with excess cost or unnecessary hurdles.
Business is about measured risk taking
Running a business involves risk. Employment law is just one of many risks in business. Arguably more businesses are ruined by poor credit giving decisions than by employment law.
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.
Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.