Employment law and magical realism

This is my last post on the blog before I head off to South America for a few months. Reflecting on my experience of employment law so far, I am reminded of how my view of reality has sometimes been twisted by the way in which the system works. Appeals against Employment Tribunal decisions are only allowed on a point of law and appeals usually proceed on the basis that the facts found by the Tribunal are correct, even when it is known to all the parties that they are not. The most common rookie mistake is to try to challenge the errors of fact made by the Tribunal but, in overcoming this, there is another danger, that we forget that what actually happened does matter to the parties. It is not always easy to work out who is telling the truth but that person will forever feel that he or she has been wronged if that truth is not reflected in the judgment, regardless of all the good policy reasons for the statutory restriction placed upon appeals.

This requires compassion with clients for whom we should never forget that the judgment may be the last word legally but it is not necessarily the last word epistimologically. What Tribunals find is deemed to be the truth but this is a convenient legal fiction and it must be remembered that it is not always actually the truth. Parties will be more satisfied with the system if this is more widely acknowledged. We must not allow Tribunal decisions to construct our reality.

“Tired of that hermeneutical delirium, the workers turned away from the authorities in Macondo and brought their complaints up to the higher courts. It was there that the sleight-of-hand lawyers proved that the demands lacked all validity for the simple reason that the banana company did not have, never had had, and never would have any workers in its service because they were all hired on a temporary and occasional basis. So that the fable of the Virginia ham was nonsense, the same as that of the miraculous pills and the Yuletide toilets, and by a decision of the court it was established and set down in solemn decrees that the workers did not exist.”

Gabriel Garcia Marquez – One Hundred Years of Solitude