Settlement agreements are agreements between employers and employees, which settle certain employment claims. The vast majority of employment claims can be settled in this way, although there are a few exceptions.
Usually the employee waives the ability to bring employment claims on the basis that the employer pays the employee a discretionary termination payment. This could be in the form of an enhanced redundancy payment.
Independent legal advice
It’s a legal requirement that the employee receives independent legal advice on the terms and effect of the settlement agreement and its effect on the employee’s ability to pursue rights before an employment tribunal. The rationale for this is that if there was no such requirement it would be much easier for employers to put pressure on an employee to waive claims. The independent legal adviser must have a policy of insurance or indemnity covering the risk of a claim by the employee.
What are the other legal requirements?
• The agreement must be in writing.
• The agreement must relate to particular complaints.
• The agreement must state that the conditions for regulating settlement agreements under the relevant statutory provisions have been satisfied.
It is important to assess the amount of money that the employee is receiving and whether a bigger sum could be negotiated. This will involve considering any potential claims against the employer and the value of such claims. It may well be possible to negotiate a higher settlement sum.
Generally, the first £30,000 of a termination payment is free of tax and national insurance contributions (NICs) with the balance subject to tax (but not employer or employee NICs). However, there are a number of exceptions. One of the exceptions is where the employee has a clause in their contract allowing the employer to pay them off instead of them serving their notice (PILON) and the employer exercises the right. In such circumstances there will be tax and NICs to pay on the sum corresponding to earnings the employee would have received for notice.
From April 2018 whether or not the employee has a PILON clause in their contract which the employer exercises, a sum corresponding to earnings for notice will be subject to tax and NIC deductions. It is also expected from April 2019 that employer NICs will also be due on the balance of any non-contractual termination payments over £30,000.
Other things to consider
Normally the employer contributes towards the employee’s legal costs for obtaining legal advice. There is no legal requirement for the employer to contribute but it is common practice.
A reference could be agreed and annexed to the settlement agreement. The employer would then normally be obliged to provide the agreed reference to any prospective employers. In many sectors, including the financial sector, it is standard practice only to provide a factual reference with dates of employment and job title. A factual reference could nevertheless be annexed to the settlement agreement. In some cases it may also be sensible to agree an internal announcement.
Usually employees will be required to agree to confidentiality obligations. A typical clause (sometimes known as a gagging order) could prevent the employee from disclosing the terms of the settlement agreement and the circumstances of their departure with third parties except for immediate family, professional advisers and as required by law. The employee might also be permitted to disclose their employment history and the reason for leaving to prospective employers.
Any restrictive covenants relating to competitive activity in the employment contract could continue to apply. An employee may be prohibited for a certain period of time from joining a competitor or setting up in competition. An employee may also be precluded for a certain period of time from soliciting clients, dealing with clients and poaching staff. The employer might agree to waive or change some of the restrictions.
If the employee is expecting to receive a bonus an appropriate clause ought to be included in the settlement agreement. Sometimes an employee may have received a previous bonus award which would vest at a later date. This could be in the form of cash, stock or options. Often when employees are made redundant they are treated as good leavers and awards continue to vest on the usual vesting dates or are accelerated. This is not always the case though.
There could be other issues to consider too, and each case will be different.
This guide is intended for guidance only and should not be relied upon for specific advice.