Plain language
Potential net annual cost savings of £250,000 or more should be music to corporate ears. Those ears however seem resistant to the siren song of plain language for regulatory compliance communications.

Evidence shows that small investments in clearer messages save significant time (and therefore money), and improve reader understanding and compliance. For example, in the US Federal Express revised its ground operations manuals, which staff had to search for an average of 5 minutes to find information, with only 53% then finding the right answer. Average search times with the new manuals fell to 3.6 minutes, with an 80% success rate and conservatively estimated annual savings of $400,000. [1]

Overlooking the value of clarity could not only result in missed efficiency savings but also become expensive in its own right. Legislators, regulators and courts are all now looking at how businesses embed culture and compliance. Producing a written policy with a flourish is no longer the rabbit-from-a-hat it once was. The point is less about whether you have sent a message, but whether that message has been received, understood and applied.

This is an inevitable result of the ongoing modernisation of law to make corporates criminally and/or financially liable for ineffective compliance processes. The aim of having good processes is of course to avoid expensive and reputation-damaging enforcement completely, but even where something has gone awry, they can substantially reduce penalties. Enforcement of the ‘failure to prevent’ offence under the UK Bribery Act 2010 shows that in mitigation weight is given not only to whether training and communication have happened, but also whether employees have understood and can apply it in practice.[2] Similarly, sentencing guidelines for offences under health and safety and environmental legislation take into account reasonable procedures.[3] 

Processes that are adequate in theory can often fail in practice because people do not understand what they need to do. This can happen when policies and manuals are difficult to read or where the right information is hard to find. As the estimated average reading age in the UK is 9, it is easy to see how compliance can fail despite volumes of policies and procedures – especially when you combine this with busy people trying to get things done in the shortest possible time without wading through masses of text.

Internal policies and procedures often use the same wording and even sentences as the legislation, which is written to meet the needs of lawyers and courts, not those of businesses and their staff.

For example, bribery policies may contain something like this - ‘It is not acceptable for you (or someone on your behalf) to give, promise to give, or offer, a payment, gift or hospitality with the expectation or hope that a business advantage will be received, or to reward a business advantage already given’. Using various testing methods such as the Gunning Fog Index and SMOG[4], this type of text comes out as ‘difficult to read’ and requiring university level skills.

This is neither ideal nor necessary for simple statements of principle that you want people to digest and apply quickly. A clearer version would be ‘You must not offer or take bribes at any time. This includes any gifts or lavish hospitality that could be seen as meaning to influence someone’.

Nor does it make sense for operational procedures to be anything other than simple and clear. In US, a study assessed how the way a general memo was written affected reading time and comprehension amongst naval officers, about half of whom were based at the Pentagon. The officers took 17-23% less time to read a memo written for high impact than one in the traditional style, and half as many felt the need to reread it. Potential savings across the US Navy if all personnel read plain documents were estimated at $250-350 million per year.[5]

Yet it is comparatively rare to find a corporate policy or process relating to regulation that has been boiled down to plain language focused on what actual business needs are. There can, of course, be many reasons for this, but key amongst them is the assumption that anyone can write simply, clearly and confidently, or can learn to in a two hour workshop. It is however a skill that takes time and practice to learn, and is increasingly a profession in its own right. Also, the writer needs to be able to understand not just the regulation but how this impacts the business, and what user groups need to know in order to be compliant.

Small investments in this skill set or in specialist advice can bring significant benefits in efficiency and compliance, and as regulators shift their focus from checklists to outcomes, not doing so may well become a cost in itself.  

 

Ros Baston 7Ros Baston

Ros, a former solicitor, leads our newly-founded Centre for Corporate Regulatory Insight. She has over 15 years’ experience in the public and private sectors, including City firms, working in-house at a FTSE 250 company and leading an advice and guidance team at a regulator.  She helps clients navigate the complex web of regulation, turning legal requirements into plain English commercial advice.

 

[1] Writing for Dollars, Writing to Please, Joseph Kimble, category 1 - 6 http://www.impact-information.com/impactinfo/dollars.htm

[2] See in particular SFO v Standard Bank plc 30 November 2015 at para 20 together with the Statement of Facts

[3] https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web1.pdf   http://www.sentencingcouncil.org.uk/offences/item/organisations-illegal-discharges-to-air-land-and-water-unauthorised-or-harmful-deposit-treatment-or-disposal-etc-of-waste/

[4] See for example http://www.readabilityformulas.com/free-readability-formula-tests.php

[5] Writing for Dollars, Writing to Please, Joseph Kimble, Category 1 -3 and Category 2 - 8 http://www.impact-information.com/impactinfo/dollars.htm

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