Falstaff may have been brighter than you realise!

I’m a massive Shakespeare fan.

That doesn’t mean I understand all of it, or even remember as much of it as I did when I was at school, but an afternoon at the Globe watching one of his plays is still time well spent.

For those of you not that familiar with the Bard, Falstaff is a regular character, and although he’s a knight, he’s often portrayed as a portly, comic, buffoonish figure, like the one in the picture with this blog. Reminds me of one or two politicians I’ve had the (mis)fortune to meet!

However, he is the origin of one of my favourite sayings, which is “discretion is the better part of valour”. Or, put another way, it’s better to be careful than take unnecessary risks.

That may not sound like a legal term, but it is still one I rely on often, particularly in litigation. I’m always up for a fight and never afraid to do battle on behalf of my clients, but I’m also regularly going to warn clients to be careful and not to take unnecessary risks, because no matter how right you think you are, if you end up at trial, it doesn’t matter what you think, or what I think, or what our barrister thinks or ultimately even what the other side think. The only person whose opinion really matters is the Judge, and Judges have a very wide discretion.

In a recent case, some employees were dismissed. They alleged that the reason for the dismissal was whistleblowing. The employer said that it was due to some posts that the employees had put on social media. The Court said that the employees were in the right and gave them their full award.

The employers appealed, arguing (amongst other things) that the Tribunal should have taken the social media posts into account, which would have reduced the amount that they would have been awarded.

The EAT agreed that the Tribunal COULD use the social media posts to reduce the award, but they were under no obligation to do so. They were the ones who had heard all of the original evidence, and if they had decided that the employees should have their full award, the EAT was not going to interfere. Which demonstrates not only how unpredictable Judges can be, but also how difficult it can be to overturn a decision.

Given that there seems to have been no doubt that the social media posts were relevant, you can understand how having had the Tribunal find against them, and given how expensive litigation can be and that even if they had won, they would not have got their costs back, was it really a fight worth having?

Kleyman & Co Solicitors. The full-service law firm. Hubble Bubble Toil and Trouble!