Employment law – Settlement Agreements
COSTS GUARANTEE- WE WILL NOT CHARGE YOU MORE THAT THE LEGAL CONTRIBUTION OF FEES FROM YOUR EMPLOYER FOR REVIEWING AND ADVISING YOU ON YOUR SETTLEMENT AGREEMENT.
As specialist employment law solicitors, we are highly experienced in advising on settlement agreements, and successfully negotiating the terms. We have advised clients on over 25,000 agreements ranging from senior executives in blue chip companies to middle management and more junior roles, throughout the UK- and in most industry sectors.
As a result of working in this area for so many years, we can turn around your settlement agreement both within expected deadlines, and within the legal costs contribution from your employer. We use our experience to ensure that the final agreement that you sign reflects the best possible outcome and settlement terms for you.
need advice on a settlement agreement that you have already been presented with;
wish to know whether what you have been offered is a fair settlement, or should be negotiated upwards;
wish to negotiate a settlement agreement from your employer from scratch (without any offer presently on the table)
Settlement Agreement FAQ’s
A Settlement Agreement is a legally binding contract made between an employee and employee. It is usually entered into at the termination of employment and sets out the full terms between the parties.
In its simplest form, a settlement agreement will provide for termination payments (which may include your notice, an tax free sum, redundancy, holiday, bonus, and other sums. There are, however, many other clauses (see below).In return for receiving these payments, you must agree not to bring any legal claims against your employer (for example, unfair dismissal, discrimination or breach of contract).
The settlement agreement process is recognised by statute and is one of the few ways that an such agreement between an employer and employee can be totally binding in law. It is for this reason that you need to take independent legal advice on the document, usually by a solicitor, before it becomes binding. The solicitor also needs to certify the agreement.
Essentially, yes. An “NDA” stands for Non-Disclosure Agreement.
Settlement Agreements offer the benefit of certainty and a clean break between an employee and his employer. An employee will have the security of a termination document setting out what financial settlement he or she is receiving together with other aspects of termination such as a job reference. The employer, in turn, has the guarantee that it will not have to deal with a future claim by that employee. It is for these reasons that many employers and employees utilise the Settlement Agreement process, even where an employer has followed a fair process and/or the employment has ended amicably.
A Settlement Agreement may be offered in many situations, and it is usually when your employment is coming to an end. They may, for example, be voluntarily offered by your employer to avoid a drawn-out performance, disciplinary or redundancy process, which can often be costly and time-consuming and lead to ongoing contention unless drawn to an early close.
A Settlement Agreement would also be used where there is a dispute with your employer- again as a means of bringing that dispute to a close. In other words, it becomes the document that sets out the final terms that have been negotiated against the threat of legal claim against your employer.
Of course, you are under no obligation to accept a Settlement Agreement and should and can only do so, once independent legal advice has been obtained. As mentioned above, the agreement cannot be binding unless you have received such advice and a lawyer has provided the appropriate certificate.
You will more likely than not see this heading on a settlement agreement that you have been given, or in a covering letter/email. It is entirely standard wording. The phrase “without prejudice” is intended to mean that any communications that follow cannot be admitted in subsequent tribunal or court proceedings as evidence. This usually includes any conversations that are preceded with “without prejudice”- so it doesn’t just apply in writing. The reason for labelling the communications “without prejudice” is to enable parties to discuss termination arrangements freely without fear of such evidence finding its way to a tribunal if the proposed settlement breaks down.
It used to be the case that it was necessary to show a prior dispute with your employer (such as disciplinary proceedings) before the “without prejudice” rule could then be relied on by your employer without you referring the matter to a tribunal. In the last few years, the concept of “protected conversations” were introduced to enable an employer (and employee for that matter) to instigate settlement discussions without there being a prior dispute.
“Subject to contract” means that the settlement agreement will not be binding unless and until there is an agreed signed contract on the final wording. This stops either party saying that there has been a prior binding agreement.
A “protected conversation” under section 111A of the Employment Rights Act is to allow employers to enter into off-the-record conversations with a view to agreeing the exit of an employee, even where there is no prior dispute between the parties. The issues discussed are not supposed to be admissible in an employment tribunal hearing, although there are some exceptions where this will not apply (for example in the case of discrimination).
A protected conversation is very similar to one that is “without prejudice”, however it is more narrow in scope as to when it can be used. In the main, protected conversations are used where there are performance allegations against an employee, and the employer would rather not go through a lengthy performance process. This is often not in the interests of the employee either- and so, without any prior dispute, a protected conversation may be had where an offer to leave will be made.
The rules governing protected conversations only relate to “routine” unfair dismissal claims. It cannot apply to dismissals that are automatically unfair, such as those involving health and safety matters or whistleblowing. Neither is protection afforded to breach of contract or discrimination claims. This can be a real problem for your employer if they have made an offer for you to leave, and falsely thinking they have “protection” in doing so. Your employer also cannot rely on a protected conversation where there has been “inappropriate conduct”, such as you being told you will have to resign or be dismissed if you do not accept the offer being made to you.
In all the above circumstances, you will be able to rely on the conversation as evidence in later tribunal proceedings, for example in a constructive dismissal claim. This is a highly tactical situation which can be used to your advantage, and you should be taking legal advice at this stage is possible.
An ex- gratia payment is a sum of money that your employer agrees to pay you over and above what you are strictly entitled to under your contract of employment. So it would not include for example, your notice, holiday, commission or bonus payments. An ex- gratia payment is highly tax efficient and may be offered after you have had a protected conversation with your employer (see above).
You may be presented with a settlement agreement by your employer completely out of the blue. This is more likely to happen where your performance is brought into question, and your employer wants to give you the option to leave under agreed terms rather than go through a performance process.
You do not have to accept the offer. You can reject it, or request a proper performance process is followed.
ACAS have issued a statutory Code of Practice on Settlement Agreements, which sets out how settlement agreements should operate and also provides best practice of how pre-termination negotiations should be undertaken. The code is not binding, but employers would need to justify why they deemed it not necessary to adhere to it.
The ACAS Code recommends that you be given a period of 10 calendar days to consider an offer made by an employer, but it can be less if this is considered to be reasonable.
The Code also gives examples of “improper behaviour” associated with reaching a settlement including putting undue pressure on you to agree an offer. This includes, for example, an employer saying before any disciplinary proceedings have begun that you WILL be dismissed if you don’t accept the offer, and also all forms of bullying and harassment and intimidation.
You will need to be careful and guarded if there is an unexpected approach by your employer with an offer for you to leave. It can be difficult to negotiate a figure upwards once you have already agreed to it (even though terms are not binding until you have taken legal advice on the settlement agreement). It is not wise to even provide the most basic signal that you are prepared to give up your employment.
Unless you consider the offer is too good to turn down, you should preferably just listen to what your employer has to say at the first meeting- without committing yourself either way, and then take immediate legal advice.
Below is an example of clauses which are typically found in the majority of settlement agreements:-
Termination Date: This will set out when your employment has ended, or will end. This may be many months away, or very frequently, the proposed date is only a few days away from when you have been presented with the agreement (or the date may have already passed). Your termination date will also be dependent on what notice period you are entitled to (see below).
Reason for termination: This should usually be specified, and in some cases the reason will simply be stated as a “mutual agreement”.
Compensation: For the majority of employees, this is likely to be the most important aspect of the Agreement. The first £30,000 of any compensation over and above your contractual entitlement (such as notice) is known as an “ex gratia payment“. This sum can usually be paid free of deductions for tax or national insurance contributions. It is also important that there is a timeline for payment of this sum (for example, in the next payroll, or 21 days after the signing of the agreement). Depending on the circumstances surrounding the proposed termination of employment, it is often possible to negotiate the compensation figure upwards, and this is something we will be able to discuss with you.
Tax indemnity: In light of the fact that some elements of the compensation can be paid tax free, a tax indemnity is always given by the employee. This makes you ultimately responsible for the payment of any tax and national insurance should HMRC determine that tax should have been deducted. Such an indemnity is entirely usual as it is ultimately your tax to pay in the unlikely event that HMRC should decide this.
Notice: The settlement agreement will set out what notice you are entitled to, including whether you have to work that notice or not. Very often, you will be paid in lieu of notice (otherwise known as “PILON‘). Typically, a PILON payment will reflect your full notice in one lump sum (or the balance of any notice due), and also means that your termination date will be much sooner that it would have been had you worked your full notice. PILON payments will always be subject to tax and NIC.
You may also be put on “garden leave”, which means that you are not required to come in to work during your notice period.
Payments up to the Termination Date: The Agreement needs to provide that you will be paid your salary, accrued holiday, benefits, bonus and outstanding expenses up to the termination date. Please note that most benefits stop at the termination date (including life cover and health insurance), unless otherwise agreed.
Bonus or commission, deferred stock options and share awards: You will need to check the terms of your employment contract to determine whether you are entitled to outstanding commission, bonuses, shares, stock options or deferred payments under various share schemes. If so, the amounts will need to be inserted into the Agreement.
Pension: Where applicable, payments into your pension fund should continue up to the termination date and, where a payment in lieu of notice is being made, your employer may be obliged to continue to make contributions for an equivalent period depending on the terms of your contract. Where you elect to pay part of the settlement sum into your pension, this needs to be provided for in the settlement agreement otherwise you may not be able to take advantage of the tax free nature of the payment into your pension.
Return of employer’s property: You will usually be required to return company property within a certain timeframe, usually on or before the termination date, but in some cases, it can be within a period of time after this. If you have been allowed to retain some property such as a laptop and phone, this needs to be set out in the Agreement.
Waiver of claims: Your employer will want to make sure that the Agreement prevents you from bringing future claims against your employer. The Agreement usually specifies which claims are being waived (i.e. unfair dismissal and/or breach of contract). In any event, there will often be a huge list of statutes that you are agreeing to waive any right to claim under. This is entirely usual. Your employer cannot, however, compel you to waive your right to claim for any personal injury which you were not aware of at the date of signing of the agreement. You can also not waive your right to accrued pension rights, or to enforce the actual terms of the Agreement itself.
Warranties: You usually have to warrant that you are not aware of any circumstances which would have entitled your employer to dismiss you without notice (summary dismissal) prior to the signing of the Agreement. This covers the situation, for example, where you know you have been negligent or committed some act of gross misconduct, but have been covering this up.
New job offers: Ordinarily, you are not under an obligation to disclose future job offers (and would not be advised to do so). However, in some cases, the Agreement will require you to warrant that no job offer has already been made or where you have an expectation of it being made. The reason for this is that is because your future loss of earnings is the main part of your damages were you to issue tribunal proceedings and win, it could impact on your employers decision to pay you a certain level of compensation if they knew you were simply going to walk into another job.
Reference: An employer is under no obligation to provide you with a job reference, so it is always advisable to make sure that one is attached to the Agreement which becomes binding on your employer. Most employers will only provide a factual reference which sets out dates of employment and the employee’s job title. It may be possible, however, to negotiate a more personal reference which again, should be attached to the Agreement. A reference clause should also state that an oral references to future employers will be given in a no less favourable manner.
Confidentiality: This clause prevents you from discussing the terms of the settlement agreement and, in some cases, the circumstances surrounding it. It is entirely usual. You should ensure, however, that you are able to discuss the Agreement with your immediate family, and also you need to be allowed to let prospective employers know why you have left (in general terms). The appropriate carve outs would need to be incorporated for this.
In addition, and as a matter of law, an NDA cannot be used to prevent you from:
- Reporting an offence (e.g. discrimination or sexual harassment) to the police.
- Reporting discrimination or harassment to your employer.
- Making a protected disclosure under whistleblowing law – for further information see our specific page on whistleblowing.
- Reporting misconduct to a professional body or regulator.
- Co-operating with and giving evidence in connection with a criminal or regulatory investigation.
- Disclosing information to the tax authorities in connection with tax-related matters.
- Seeking legal, medical or other professional advice.
- Disclosing any information which you are legally required to disclose.
- Disclosing or reporting discrimination or harassment which has not happened yet.
If you are presented with a settlement agreement which prohibits you from doing any of the above, such clauses should be struck out. However, even if you signed an agreement with the clauses still present, the confidentiality provisions would simply be unenforceable.
You should also not receive any threats to have claims made against you for breach of contract and damages if you were to subsequently make any of these disclosures. If such threats were made by the lawyer acting for your employer, this would be viewed a matter of professional misconduct.
Non-derogatory clauses: There will usually be a clause which prevents you from making derogatory remarks/statements about your employer to a third party. It is important to ensure that this obligation is mutual so that your employer (or named individuals) cannot make disparaging comments about you either.
Restrictive covenants: Where you have restrictive covenants in your contract of employment, these are likely to be re-affirmed in the settlement agreement. It is important to check that the restrictions set out in the Agreement are no more onerous than those which appear in your original contract of employment. It may also be possible to negotiate a reduction or, in some cases, a complete removal of some or all of the restrictions. Where the restrictive covenants are new, these also need to be checked to see if they are too onerous and whether, in fact, you should be agreeing to them at all.
Where an employee has permission under the FCA or PRA to carry out ‘Regulated Activities’, a gagging clause upon termination of your employment will not be effective. The following clause is now mandatory in any settlement agreement you are offered:
“For the avoidance of doubt, nothing precludes [name of worker] from making a “protected disclosure” within the meaning of Part 4A (Protected Disclosures) of the Employment Rights Act 1996. This includes protected disclosures made about matters previously disclosed to another recipient.”
Please see more details below on this under NDA’s.
Breach of the agreement: Settlement Agreements are likely to provide that if you breach any of its terms, you have to then repay some or all of the payments being made by your employer and that you indemnify them for future costs and proceedings in seeking to recover the same (and in some cases losses arising from the breach). This is a usual clause, although it often needs to be watered down so that only a “material” breach should give rise to any repayment, and even then, the repayment should not include those sums which you were entitled to receive in any event (such as contractual notice payments).
Legal fees: Most employers will agree to pay a contribution for you to receive legal advice in relation to a review of your Settlement Agreement. This will usually be between £250 and £500 plus VAT. The contribution can be more than this, but it is very rarely less be more or less. It is important to bear in mind that a contribution towards legal fees is not an entitlement or right under statute, however it is almost universally offered by employers.
Entire Agreement: Normally, settlement agreements will specify that, by signing the Agreement, you are not relying on the incorporation any other document that existed prior to the signing of the Agreement. In other words, the Settlement Agreement contains the full terms between the parties.
Simply put, yes, as long as you believe the sexual harassment may be a crime (for example, an assault). Any clause in a settlement agreement or NDA which says that you cannot disclose sexual harassment for the purpose of reporting a crime to the police is going to be unenforceable.
You can sign up to such a term, however it is unlikely to be binding as there is nothing in the ICO’s guidance that states an employer can rely on a clause in the settlement agreement as a reason not to provide the requested data.
The ICO’s guidance, however, does allows an employer to reject a DSAR as “manifestly unfounded” where the request is “malicious in intent and is being used to harass an organisation with no real purpose other than to cause disruption”. It is possible that this would cover someone who expressly agreed not to make a DSAR but then did so anyway. This is particularly the case if any material time elapses between the promise not to make the DSAR, and the actual DSAR being made. The ICO would need to decide on the facts of the case if your employer refuses to comply with the request.
Yes, frequently there will be such a term in a settlement agreement not to proceed with an existing DSAR or make a complaint to the ICO, sometimes as part of an agreement not to proceed with a grievance. Most employees would probably leave it at that, however there is some legal question mark over the strict enforceability of such a term due to the overreaching protective nature of your data protection rights. However, the entering of a settlement agreement waiving your employer’s alleged breaches would almost certainly be accepted by the ICO as good grounds for not having responded in a timely manner or addressing your concerns to date, even your employer was ordered to do so going forward.
In most cases, no. If you have signed a valid settlement agreement containing a confidentiality clause this would usually be sufficient to stop you from taking a story to the media. It is possible (and likely) that your ex-employer could sue you for breach of contract and significant damages if you did so.
However, as mentioned above, a settlement agreement cannot prevent you from reporting crime to the police, whistleblowing to an appropriate authority (for example a regulator), or reporting anything that had not yet happened at the time you signed the settlement agreement, for example if you have stayed with your employer and the harassment has continued.
If you are concerned about the validity or enforceability of a settlement agreement you have signed, you should seek legal advice before taking any further steps.