Simplifying the complex – red tape and employment law

Tied up or tied down?

Simplifying the complex – red tape and employment law

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?

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.

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.

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.

See our previous blog be continued…..

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.

Tel: 08452 303050 Fax: 08452 303060
Website :
You can follow Annabel on Twitter



Filed under employment law, employment tribunal

4 responses to “Simplifying the complex – red tape and employment law

  1. Pingback: Bonfire of the delusion – do we have the power to repeal employment law? | Employment law in a mad world

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  3. Pingback: What I say, or what I mean? Red tape and employment law | Employment law in a mad world

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