This week I spent some time analysing an employment issue with a colleague. There were numerous potential outcomes, depending on the findings of fact to be made by a Tribunal at various stages. Each would bring different legal issues into play.
Ultimately, although tempting to explore and discuss each legal argument until the proverbial cows came home, our advice was reached by stepping back from that and applying some good old common sense to the analysis. What would an Employment Judge be likely to conclude, taking everything into account? Which of the legal arguments would be most palatable? Which of the arguments, although legally sound, would be unattractive in the cold light of an Employment Tribunal?
It reminded me that a good helping of common sense is essential to employment law analysis. After all, if an issue gets to a Tribunal hearing, it will be decided by an Employment Judge with their own experiences, opinions, interests and character, some of which may inform their decision and some of which they will try to put to one side.
It’s a bit like those Lego head storage boxes. A smiling face on the outside but take off the lid and there’ll be a mass of different coloured and different sized bricks inside. Some will already be half built and assuming a shape of some kind, others will be ready and waiting to be applied and built in one direction or another. Some will simply stay where they are on the basis that they’re not useful or relevant to the project in hand.
It’s worth remembering that Tribunal decisions are made by people applying the law, with all that entails. If you’ve ever had a bare footed collision with a random Lego piece, you’ll know: a lack of attention to that stuff can have pretty painful consequences. Thankfully, at Workwise our experience enables us to provide advice based on the Lego, as well as the law.