This is a blog about a job that every HR professional has to tackle – making the legal stuff sound straightforward.
As lawyers we do try to use simple language, but because writing can be ambiguous it often seems as though we are using too many words, or repeating things that have already been said. Some of us would say that legal drafting is an art – although you may not agree!
You can of course try to summarise or explain what a legal document means. But it is vital that you do so carefully without unintentionally destroying the intended meaning.
Here is a real example. In a letter to our client - a senior executive - an HR professional tried to explain a rule relating to the treatment of bonus during garden leave.
The HR professional made the mistake of putting the explanation into a letter that was being issued to change some other terms of the contract.
The explanation was unclear and the words used did not match the language in the original bonus scheme rules. This was compounded by the fact that the original rules had been reissued on a few occasions with limited version control.
What happened?
When a court is faced with true ambiguity, it will usually apply a doctrine of contractual interpretation called 'contra proferentem' – which means that the preferred meaning will be the one that works against the interests of the party who 'held the pen'.
In our case this left the Employment Tribunal with no option but to interpret the ambiguity in our client's favour.
So the moral of the story?
If you are going to refer to a set of formal rules in a letter, a policy document or informal guidance, make sure that you:
- Make it clear that there is a set of formal rules
- Specify which version of the rules you are referring to
- Make it clear that what you are saying is not intended to vary or change those rules
- Explain that if there appears to be a conflict between what is in your communication and the rules, the rules will prevail.
Contributor
Partner
