Employment Law Advocates

As the appellate courts have been quiet over the last few days, I would like¬†to take the opportunity to write about the concept of “dark law”. Just as many physicists believe that a large proportion of the universe consists of an undetectable but weighty substance, it is well known to legal practitioners that there are many principles¬†which are applied by courts and tribunals almost as second nature but¬†that never find their way into reported case law.

There are several problems with this. Dark law offends against the rule of law in that it makes it hard for people to understand the extent of their obligations. However, there is a particular difficulty for employment law because many parties to tribunal litigation are not represented or are represented by relatively inexperienced people such as pro bono volunteers, consultants or trade unionists. Experienced barristers of many years call are undoubtedly knowledgeable about dark law and they are able to pass their wisdom onto their pupils. Others have nothing to guide them expect for those bad days in tribunal when cases unexpectedly fail. Some Employment Judges are very good at elucidating dark law principles in their judgments and this can help a lot but others, regrettably, are reluctant to rely on anything for which there is little authority for fear of an appeal. Thus, dark law remains dark.

It is a frequent complaint that too many weak cases are brought and that too many weak defences are run. This clogs up the system and hinders other forms of dispute resolution. Various draconian solutions are suggested, including a greater use of deposits and costs awards. In my view, a wider dissemination of the understanding of dark law would go some of the way to solving this problem because it would make it easier for parties and their representatives to evaluate the merits of their arguments. So far, no-one has tried to do this in a written format.

Over the next few weeks, I shall attempt to outline some dark law concepts which I have encountered in practice in order to share them with a wider audience. I am aware that this is a risky venture. By definition, they are invisible and elusive and, while¬†I¬†believe that many are almost universally applied, there¬†is no obligation for all tribunals to¬†follow them.¬†¬†It is, strictly speaking, impossible to give legal advice where dark law is concerned and so you cannot sue me if you rely on something that I have written¬†in this column and it all goes¬†horribly wrong. However, if you disagree with me, I would very much encourage you to engage me in debate. To¬†be continued…