Tagged: legislation

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One, two, three, three A, five…

When a statute or statutory instrument is first passed its sections are numbered sequentially: s1, s2, s3, s4 and so on.

Over time, two things tend to happen. Sections are repealed (a lawyerly word for deleted). This is fairly easy, the section simply drops away and is forgotten.

Second, new sections are inserted. This is done by adding a capital letter to the number. So if a new section is inserted between s14 and s15, it is s14A. If there is more than one section to be inserted, you progress through the alphabet: s14A, s14B, s14C on so on. Inserted sections always use capital letters to avoid confusion with the lower case letters used in subparagraphs, eg s99(1)(a).

Occasionally, its necessary to insert sections between two sections that were themselves inserted. For example, to insert a new section between s14A and s14B. Then we add more letters. So the new section would be s14AA.

Of course, in the context of a tribunal case, you won’t be amending legislation. But it’s useful to understand how this works, because it makes it easier to understand the history of a piece of legislation. It’s also important to realise that inserted sections are wholly freestanding. So, for example, a cross reference in legislation to s101 does not apply to s101A.

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Subject to

“Subject to” is one of those bits of technical language that can easily cause misunderstandings. It comes up frequently in legislation and often leads to mistakes.

A rule that is described as subject to something else, is subordinate to that thing. So, if Rule A is subject to Rule B, Rule A is subordinate to Rule B.

In other words, it will take effect, only so far as Rule B does not apply.

This is much easier to see in practice. For example, s98A(1) Employment Rights Act 1996 reads:

98A(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—-
(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

What this means is that, if one of the statutory dismissal procedures should have been followed, but wasn’t completed and it is the employer’s fault, the employee has been automatically unfairly dismissed.

s98A(2) goes on:

s98A(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

This creates a statutory defence. If an employer followed an unfair procedure, but can show that he would have dismissed anyway, the employee has not been unfairly dismissed.

However, subjection (2), is subject to subsection (1). So it cannot override the rule about automatic unfair dismissal.

So, there is a statutory defence if an employer runs an unfair procedure, but dismissal would have occurred anyway – unless there is a breach of that statutory dismissal procedure.

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What is the law?

There are two sources of law in the employment tribunals. One is legislation: the law passed by Parliament. The other is case-law, some of which consists in the courts’ interpretations and explanations of legislation, and some of which is what is called ‘common law’ – law that doesn’t come from legislation at all, but has been developed over the years by the courts.

These are broad headings. They do not take into account the differences between Acts of Parliament and Regulations. Or deal with the significant role European legislation and case-law has on tribunals.

The point is that there is a lot of useful information out there that is not the law. What you read in a text book; a handbook; a magazine; a leaflet; or the internet (including this blog) is not the law. It is a description of the law. The same is true even of a book written by a judge, or a leaflet produced by a government department, or ACAS, or the Employment Tribunal Service.

There are two important consequences of this. Firstly, descriptions can be wrong. Employment law moves relatively quickly. A book written a few years ago is likely to include dozens of points that were quite right at the time but where things have changed. And people – even lawyers – do make mistakes.

Even if your sources are up to date and accurate they will be a summary of the law. Often this is all you need, but on important points it can be useful to go directly to the source. Reading a brief review of an area in a book will never give you the sort of detailed knowledge that an afternoon sweating over the legislation and half-a-dozen cases will.

The other point is that the tribunal is only bound by the law itself. If you want to convince them of something, you will normally need to do it by referring to legislation and case-law, rather than a book.

There is a difference here between the tribunals’ expectations of lawyers and lay people. A lawyer who advances a legal proposition without being able to back it up by reference to legislation or case-law is likely to get a flea in her ear from the tribunal – and deserve it. A litigant in person who says ‘I think it’s like this; I found it in this book’ can expect the tribunal to meet her halfway.

None of this is to say that secondary sources of information are not valuable. They are extremely useful, even vital, sources of information, analysis and advice. But they are a map of the legal landscape, not the landscape itself.

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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.