Following a rise in the use of settlement agreements during the Covid-19 pandemic and the current economic downturn, an employment law specialist with Furley Page has said it is essential that employers can speak to staff ‘off the record’ to ensure exit discussions can be as harmonious and effective as possible.
The Covid-19 pandemic saw a rise in the use of so-called settlement agreements, which are used to bring an employment relationship to an end, as many organisations were forced to restructure their workforces. This trend has continued during the current downturn in the UK economy.
Patrick Glencross, a Senior Associate with Furley Page’s Employment team, said: “The legislation governing settlement agreements (the Employment Rights Act 1996) recognises the imbalance of bargaining power between employer and employee, and operates to protect the employee. However, to start the discussion, employers need to be able to speak to employees ‘off the record’. While there are ways that this can be done, employers need to take care and be aware of a few limitations.”
A settlement agreement (previously called a compromise agreement) is a binding agreement to waive most contractual and statutory employment rights against the employer, usually in exchange for a severance payment and sometimes other benefits such as retention of property items and an agreed reference.
Patrick continued: “A settlement agreement is only binding if certain statutory conditions are met. Most significantly, unless a ‘COT3 agreement’ is reached through the conciliation services of the Advisory, Conciliation and Arbitration Service (‘Acas’), the employee must receive independent advice from a lawyer or an appropriately qualified advisor about the terms and effect of the agreement.
“Using a settlement agreement can avoid the cost, delay, disruption and risk of instigating dismissal procedures. This allows the employer, with the employee’s consent, to end the relationship on agreed terms. Unless specific rights are carved out, a suitably worded settlement agreement should prevent the employee from bringing claims against the employer.
“Even after the employee has left the organisation, if the employer is concerned the former employee may bring a tribunal claim, they can initiate discussions about entering a settlement agreement, or this may be suggested by the individual or their representative. The negotiations will often be based on what each party believes the individual’s potential claims would be worth if no agreement was reached and they went to tribunal.
“One of the primary benefits of talking “off the record” is that it allows for a frank discussion without the risk of it being used in evidence before a court or employment tribunal. Otherwise, if the employer simply asks the employee whether they would be interested in an agreed exit, the employee could resign and claim constructive unfair dismissal.
“Alternatively, if the employee is dismissed further down the line, they could use this conversation in an unfair dismissal claim, for example to show that a performance management process was a sham and the employer wanted them out all along.”
When are conversations “off the record”?
If there is an existing dispute with the employee, the ‘without prejudice’ rule will apply to communications genuinely aimed at resolving the dispute through settlement. Such conversations cannot be shared with a tribunal if the negotiations fall through. This would apply to all types of employment claims, but does not apply in exceptional circumstances such as where the communications involve fraud or blackmail.
Patrick said: “If there is no existing dispute with the employee, and provided certain conditions are met, an employer can have what are known as “protected conversations” without the risk of the conversation coming back to haunt them. These are discussions held, before termination of employment, with a view to terminating employment on agreed terms. Sometimes a protected conversation is initiated by the employee. We can talk employers through the timing and what they need to cover to make sure such discussions are protected as “off the record” pre-termination negotiations.
“As a word of warning; this protection only applies to unfair dismissal claims and discussions before the employee has left. If the employee has other potential claims, such as for discrimination, the conversation could form evidence in a tribunal. This creates an element of uncertainty as the extent of potential claims may not be known. Furthermore, the protection does not apply if the discussions involve ‘improper behaviour’.”
The Acas Code of practice on settlement agreements gives examples of improper behaviour, such as saying that the employee will be dismissed if they reject the settlement offer.
Non-disclosure agreements
The #MeToo movement shone a light on the misuse of non-disclosure agreements (NDAs) to cover up harassment and discrimination by silencing victims.
Patrick continued: “Settlement agreements usually include confidentiality clauses preventing both parties from discussing the agreement or its terms. Confidentiality clauses cannot, as a matter of law, prevent an individual from ‘whistleblowing’ or reporting anything to the police, and any wording suggesting this is void.”
Various reports and consultations have taken place on NDAs since the #MeToo campaign. This has resulted in guidance on the use of NDAs from Acas and the Equality and Human Rights Commission, along with guidance to solicitors from their professional bodies.
Following a consultation, in July 2019 the Government also announced it would bring in legislation to regulate the use of NDAs in employment contracts and settlements, including allowing an individual to disclose the settlement agreement to their doctor or other regulated health professional. These changes were to take place “when parliamentary time allows” but there has been no progress on this front.
However, in the Higher Education sector, the new Higher Education (Freedom of Speech) Act 2023 will prohibit universities and other higher education providers from using NDAs in relation to a ‘relevant complaint’. This means any complaint alleging sexual abuse, sexual harassment or sexual misconduct, or alleging any other bullying or harassment. Regulations will specify when this new legislation comes into force.
Patrick concluded: “It is possible that future legislation will introduce similar restrictions in other sectors such as the NHS, although no timeframe for the introduction of further legislation has yet been given.
“There are ways to bring an employment relationship to an end efficiently and to keep risks to a minimum, but there are traps for the unwary. Employers and employees considering the efficacy of a settlement agreement should talk to one of our employment lawyers as soon as possible, and we can ensure them avoid these traps.”
For further information, please contact Patrick Glencross on 01227 763939 or email pg@furleypage.co.uk