When helping clients with problems in the workplace, one of the most common issues we face is the lack of a written contract. This can, on occasion, put the employer on the back foot and create considerable uncertainty. However, sometimes the existence of a badly worded contract is an even greater problem. In this article, we highlight how easily mistakes can be made.
Too often, people don’t give enough thought to the way in which they word their contracts; they forget how differently two people can read the same clause. By way of example, the following is a common form of words used to describe a person’s sick pay entitlement:
“If you are absent from work by reason of injury or ill-health, you shall be entitled to full pay for the first five days of such absence.”
At first glance, the wording seems perfectly simple and straightforward. But what does it actually mean? Does it confer an entitlement to only five days’ sick pay, however long the employment relationship lasts? Does it mean an entitlement to five days’ sick pay in each calendar year? Five days in any rolling 12-month period? Who knows what the drafter had in mind and how this would be interpreted by the employee!
Potentially more serious problems can arise in relation to the drafting of notice clauses. We recently saw a notice provision drafted as follows:
“Length of service Period of notice
Less than 4 years’ service one month
4 to 12 years’ service one additional week for each completed year of service”
For the first 4 years, everything is perfectly obvious. But what happens after that? We suspect the employer meant to provide for a week’s notice for each year of service (i.e. 5 years’ service = 5 weeks’ notice, 6 years = 6 weeks etc). However, this is not necessarily what the clause says. It says you get one additional week’s notice for each year of service. In addition to the one month? If so, then someone with 7 years’ service would get the basic one month’s notice plus an extra week for each completed year of service. This would mean a notice period of one month plus 7 weeks. We don’t suspect this is what the drafter meant, but this is at least one interpretation of the words used; there are others!
The moral of this article is simple. When you are drafting an important document (especially a contract), don’t assume that everyone will know what you mean. Use plain English wherever you can and avoid ambiguity as much as possible. Sometimes, reducing into writing more complicated concepts or arrangements can be difficult. If you are unsure whether you are making yourself clear, run it past someone else and ask them for their opinion. Or, better still, get in touch with us and let us help you find the right form or words. It’s what we do for a living!