• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Legal Reasoning Example - of Dacas v Brook Street Bureau (UK) Ltd2 which deals with an appeal against an employment tribunals decision to state that an employee was not actually an employee of the company

Extracts from this document...


?Legal reasoning is? but an argumentation aiming to persuade and convince those whom it addresses, that such choice, decision or attitude is preferable to concurrent choices, decisions and attitudes? - Chaim Perelman Justice, Law and Argument Do you agree? Justify your answer. Yes. Kurt M. Saunders wrote ?In practical argumentation, justification involves a heuristic search; that is, the arguer searches among the many available arguments to find those that will most likely persuade the audience to accept the claim.?[1] To give an example of this, consider the case of Dacas v Brook Street Bureau (UK) Ltd[2] which deals with an appeal against an employment tribunal?s decision to state that an employee was not actually an employee of the company involved so therefore had no jurisdiction to hear her complaint of unfair dismissal (Right to not be unfairly dismissed.[3]) The appellant contended that, although she was not entitled to employee status under the general terms of her engagement with her employer, the hostel at which she was placed by her employer was governed by a single engagement contract of the type discussed ...read more.


In dealing with this case the appellant?s solicitors have used precedent to strengthen their chance of winning the appeal. Not only have they used precedent to strengthen their chances of winning the appeal, they have also taken a case not just from any other court, they have cleverly taken a case that is not just similar, but a case that was heard in the Court of Appeal. The solicitors have not only relied on the fact that both cases are similar and share characteristics, but they have also chosen a case whereby a judge in a lower court is normally expected to obey the previous decisions of Higher Courts within their jurisdiction. This relationship of lower to higher in the ?chain of command? is usefully understood as vertical precedent.[5] In doing this, the appellant?s solicitors have massively increased their chance of a successful appeal bid, and as we know, they were successful. This brings us back to the quote from Kurt M. ...read more.


The employee then appeals against the decision stating that she was in fact employed by the company therefore she is an employee, therefore she is entitled to make a claim for unfair dismissal. This is backed by precedent in the form of a previous case which is analogous since it includes a number of different facts which are shared with the case in question, backed up by stare decisis. Therefore the present case should be decided in the same way the previous case of precedent was dealt with, the appellant wins her appeal. ________________ [1] Kurt M. Saunders, Law as Rhetoric, Rhetoric as Argument (First published in the Journal of Legal Education in 1994) 166 [2] [2004] EW CA Civ 217 [3] Employment Rights Act 1996 c.18 [4] [1997] I. C.R 549 [5] Frederick Schauer, Thinking Like a Lawyer ? An Introduction to Legal Reasoning (Harvard University Press 2009) 36 [6] Kurt M. Saunders, Law as Rhetoric, Rhetoric as Argument (First published in the Journal of Legal Education in 1994) 166 [7] Kurt M. Saunders, The Toulmin Model ,Law as Rhetoric, Rhetoric as Argument (First published in the Journal of Legal Education in 1994) 168 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Employment Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Employment Law essays

  1. Marked by a teacher

    Critically assess how effective employment law is as a means of altering social attitudes.

    4 star(s)

    The Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation set out a design of optimal regulation which could help reduce, if not eliminate, under-representation, exclusion, and institutional barriers to equal opportunity.32 In their opinion paper the two main strategies were considered practicable and possibly effective, *

  2. Legal Report Writing Exercise In no more than 1500 words write a legal report ...

    would be deducted from the compensatory award element. 7.6 If no order for reinstatement / re-engagement is made, then the Tribunal will make an award based on (a) basic award (b) compensatory award - 27 Employment Act 2002, S29 28 Devis-v-Atkins[1977] 29 S113 Employment Rights Act 1996 30 S123 (8)

  1. Employee Status - In order for Carl to be able to bring a claim ...

    is no reason why the parties should be unable to make the change"11 Having regard to all the circumstances, including the purchasing of equipment for Carl, the disciplinary of Carl as well as both Carl and Baker - Rags wanting to in reality continue as they had been, there was no intention to change status.

  2. This essay will consider the growth and history of agency workers rights in the ...

    Upon dismissal the tribunal rejected the worker's claim on the basis that she was employed by neither the agency nor the end user client. Unfortunately, the client appealed only against the decision that she was not employed by the agency.

  1. employment law problem question

    may dismiss if he has a genuine belief in the employee's guilt, which is based upon reasonable grounds. The employer does not have to prove that the employee is guilty, as long as his suspicion is based upon reasonable grounds; it is irrelevant if the employee is later acquitted of

  2. Free essay

    Labour Law - Unfair dismissal

    The case of Waite v GCHQ3 also followed this principle. In this case the minimum retirement age was 60, but the employers had the discretion to keep employees on until the age of 65. The employee claimed unfair dismissal when he was dismissed at 60, however it was held that

  1. Employmenyt law

    are transferred; the value of its intangible assets at the time of the transfer; whether or not the majority of its employees are taken over and the degree of similarity between the activities carried on before and after the transfer'.9 Thus the principle test, under the Directive and hence TUPE,

  2. Defamation case of Cynthia Hyland v. Raytheon Technical Services Company, et al.

    Let?s briefly look at a timeline of Cynthia Hyland?s career with Raytheon: 1. 1982, Hired by Raytheon 2. 1992, Ten year anniversary of employment 3. 2000, She has been promoted several times and is currently the Senior Vice President and General Manager of the Installation and Integration Division (I &IS)

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work