Drafting Employment documents: a new series for 2019

During 2019 we will be providing a series of articles on how best to draft certain commonly used legal documents within the human resources arena. This follows the success of last year’s Breaking Down the Handbook series, focusing on preparing policies and procedures for staff handbooks.

What documents will we cover?

This series focuses on 5 key documents those in HR regularly come across. Each will have at least one dedicated article highlighting the specific drafting considerations for agreements about settlement, consultancy, secondment, and sabbatical, and also for fixed-term contracts. In this first article, we have pulled together some top tips when it comes to drafting that have general application across legal documents.

Top tips

There are common drafting mistakes that are encountered on an almost daily basis. To reduce the number of these avoidable errors, we have set down some general drafting advice which can be used across all legal documents:

1. Ensure the document is specific and tailored to the particular needs of the situation you want to address: starting out with the wrong document or wrong intentions is never a good start. Have a clear understanding of what you are seeking to achieve from the outset.
2. Be wary of precedents: just because a solicitor has drafted a precedent document for you in the past doesn’t mean that it is automatically fit for purpose and ‘future-proof’. Make sure that you take advice on any changes which might be needed, due to developments in the law since the last version was produced.
3. Check references to legislation: we often see documents that continue to reference legislation that has long since been amended or even repealed. There should no longer be references to the Data Protection Act 1998, for example, after the General Data Protection Regulations and Data Protection Act 2018 took effect in May last year. On top of this, numerous settlement agreements we encounter refer to old discrimination acts superseded by the Equality Act 2010. Law is ever changing, so precedents should be continually reviewed to avoid a document being sent out containing references to old legislation.
4. Check defined terms: any terms that have been included in the definitions section of a document (for example, ‘the Agreement’), must be referred to as such throughout. If an important term lacks a definition, then this makes the document confusing and subject to interpretation. It’s also important to ensure that any defined terms are consistent (ie if ‘the Agreement’ is used to describe the document, it should be referred to by this name throughout.
5. Confirm the jurisdiction: at the outset, you need to know whether the document will be governed by the law of England and Wales. This is particularly important to companies that operate businesses throughout the UK. If a document needs to be drafted specifically for use in Scotland or Northern Ireland, it will be necessary to seek assistance from professionals qualified in those jurisdictions to ensure any legislation that’s referenced in the document is applicable -or if any amendments need to be made - and that the document is fit for purpose in the country that it is to be used.
6. Ensure any cross-references make sense: one of the most common mistakes is incorrect cross-referencing in a document. For example, there may be a reference to further information that can be found in ‘paragraph 15’, where the relevant information is actually found in paragraph 16. There can even be references to a ‘Schedule’ at the end of the document which doesn’t exist. This is normally due to an over-reliance on precedents (see 2.) or not taking the time to proofread the finished document. The latter is vital to ensure that any cross-references refer the reader to the correct parts of the document.
7. Try to draft in a gender-neutral way: it is government policy for legislation to be drafted in this manner, so it’s preferable that any documents you draft are gender neutral (or as far as it is practicable to do so). In practice, this means avoiding gender-specific pronouns (such as ‘he’) to describe a person who wouldn’t necessarily be of that gender. In fact, you should avoid using nouns that suggest you’re assuming only a person of a certain gender can perform a particular role altogether, for example ‘chairman’.

Next time

In February, we will start to consider Settlement Agreements in detail, offering practical tips on how these should be drafted and key provisions to include.