What is the law?

There are two sources of law in the employment tribunals. One is legislation: the law passed by Parliament. The other is case-law, some of which consists in the courts’ interpretations and explanations of legislation, and some of which is what is called ‘common law’ – law that doesn’t come from legislation at all, but has been developed over the years by the courts.

These are broad headings. They do not take into account the differences between Acts of Parliament and Regulations. Or deal with the significant role European legislation and case-law has on tribunals.

The point is that there is a lot of useful information out there that is not the law. What you read in a text book; a handbook; a magazine; a leaflet; or the internet (including this blog) is not the law. It is a description of the law. The same is true even of a book written by a judge, or a leaflet produced by a government department, or ACAS, or the Employment Tribunal Service.

There are two important consequences of this. Firstly, descriptions can be wrong. Employment law moves relatively quickly. A book written a few years ago is likely to include dozens of points that were quite right at the time but where things have changed. And people – even lawyers – do make mistakes.

Even if your sources are up to date and accurate they will be a summary of the law. Often this is all you need, but on important points it can be useful to go directly to the source. Reading a brief review of an area in a book will never give you the sort of detailed knowledge that an afternoon sweating over the legislation and half-a-dozen cases will.

The other point is that the tribunal is only bound by the law itself. If you want to convince them of something, you will normally need to do it by referring to legislation and case-law, rather than a book.

There is a difference here between the tribunals’ expectations of lawyers and lay people. A lawyer who advances a legal proposition without being able to back it up by reference to legislation or case-law is likely to get a flea in her ear from the tribunal – and deserve it. A litigant in person who says ‘I think it’s like this; I found it in this book’ can expect the tribunal to meet her halfway.

None of this is to say that secondary sources of information are not valuable. They are extremely useful, even vital, sources of information, analysis and advice. But they are a map of the legal landscape, not the landscape itself.

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