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And / Or

A lot of legislation is in the form “Something will be true, in the following circumstances”. For example, Section 1 of the Sex Discrimination Act 1975 begins “…a person discriminates against a woman if-“, then goes on to describe the situations that will be Direct Sex Discrimination.

Statutes, and the law they create, are often complex and these provisions can be difficult to understand. A common mistake is confusing circumstances linked by ‘and’ with those linked by ‘or’, and vice versa.

‘And’ lists

s3(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 sets out the circumstances where the Modified Dismissal and Disciplinary Procedures will apply. It is an ‘and’ list.

3(2) Subject to regulation 4, the modified dismissal procedure applies in relation to a dismissal where-

  1. the employer dismissed the employee by reason of his conduct without notice,
  2. the dismissal occurred at the time the employer became aware of the conduct or immediately thereafter,
  3. the employer was entitled, in the circumstances, to dismiss the employee by reason of his conduct without notice or any payment in lieu of notice, and
  4. it was reasonable for the employer, in the circumstances, to dismiss the employee before enquiring into the circumstances in which the conduct took place,

This means that, for the Modified Dismissal Procedures to apply, subsections (a), (b), (c) and (d) must all be true.

‘Or’ lists

s7(1) of the same regulations, however, is an ‘or’ list. It sets out circumstances where the grievance procedures apply, but the parties are treated as if they have complied with them, provided the employee has sent a written statement of grievance to the employer:

7(1) Where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee and one of the reasons for the grievance is-

  1. that the relevant disciplinary action amounted to or, if it took place, would amount to unlawful discrimination, or
  2. that the ground on which the employer took the action or is contemplating taking it were or are related to the grounds on which he asserted that he took the action or is asserting that he is contemplating taking it

the standard grievance procedure or, as the case may be, modified grievance procedure shall apply but the parties shall be treated as having complied with the applicable procedure if the employee complies with the requirement in paragraph (2). [The requirement in paragraph (2) is that the employee send the employer a written statement of grievance.]

This means that the grievance procedures will apply, but the parties treated has having complied with them, if the circumstances described in subsection (a) or (b) are true (provided the employee has also put the grievance in writing).

Notice that both sections have hidden ‘and’ conditions. In 3(2) ‘subject to regulation 4’ adds to the other requirements ‘and none of the circumstances in regulation 4 are true’. In 7(1) ‘if the employee complies with the requirement in paragraph (2)’ means that, in addition to either ‘a’ or ‘b’, the employee must have put their grievance in writing.

Nested lists

Also common are nested sets of circumstances, so ‘and’ and some ‘or’.

For example, regulation 6(3) describes the circumstances in which the Modified Grievance Procedure applies:

6(3) Subject to paragraphs (4) to (7), the modified grievance procedure applies in relation to a grievance procedure applies in relation to a grievance where-

  1. the employee has ceased to be employed by the employer;
  2. the employer-
    1. was unaware of the grievance before the employment ceased, or
    2. was so aware but the standard grievance procedure was not commenced or was not completed before the last day of the employee’s employment; and
  3. the parties have agreed in writing in relation to the grievance, whether before, on or after that day, but after the employer became aware of the grievance, that the modified grievance should apply

For the Modified Grievance Procedure to apply, then, you need the circumstances in (a), (b) or (c). But (b) is an ‘or’ list so either set of circumstances (the employer being unaware of the grievance before employment ceased or not having completed the grievance procedure before employment ended) will satisfy it.

Practical suggestions

Unfortunately, this is one of those topics where there is no magic solution. Reading and understanding legislation is just difficult.

The most important thing is to accept this. Nobody can read a statute as they would a letter or novel. It has to be taken slowly and carefully.

Some people find it useful to highlight the important parts of the section. Others will rewrite the relevant parts in their own words. Still others draw complicated diagrams on a piece of paper. Sometimes beginning to draft submissions to the tribunal will help.

It also helps to look at commentary on the legislation. For example, if you have a book that describes the statutory dispute resolution procedures read it first. Once you have the general idea of what the legislation means, it it often easier to follow.

But whatever approach works best for you, the key is to go step by step, making sure that you understand the first part before moving onto the second and so on.

And if all else fails, put it down, take a break, and come back to it. It will often be much clearer on a second look.

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