Chaim Perelman Justice

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 in a similar case, McMeechan v Secretary of State for Employment. [4] In this case it was found that the appellant was entitled to employee status on the basis of his general relationship with the agency.

The employment tribunal in reaching their decision considered the terms and conditions of service with the agency, and concluded, on balance, that their overall effect was to give rise to a contract of service. It was also found that the appellant was entitled to be treated as an employee for the engagement during which he worked with the client in respect of whom he claimed payment. Referring now, back to the previous case, it was said that the employer had in fact exercised considerable control over the employee both under the terms of the agreement between the two parties and in respect of day-to-day practical matters.

It was also said that a mutuality of obligations was also evident from the terms of the agreement therefore there was every indication of the existence of a McMeechan type contract and the tribunal ought to have found that the appellant was an employee under her employer, she won her appeal. 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. Saunders, when he says “The arguer searches among the many available arguments to find those that will likely persuade the audience to accept the claim. ”[6] This has been done by suggesting the Judge apply a rule just because it has been applied before in a previous case. In my example we can see that a case was chosen by the appellant’s solicitors which shared a number of characteristics, this made it analogous.

Both cases were linked to a case of unfair dismissal and both were told that they didn’t fall under the category of an employee. Kurt M. Saunders used The Toulmin Model of argumentation to produce the following diagram. [7] If I were to apply my example to this, it would fit perfectly. I have the facts of the present case which were, that an employee, after being sacked tried to make a claim for unfair dismissal. She was told by a tribunal that she could not proceed with the claim as they agreed with her employer that she didn’t fall under the category of an employee.

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.