In this article one of our specialist employment solicitors, Chris Hadrill, answers the question: “should I accept a settlement agreement?” and explains what employees should look out for when they are being offered a settlement agreement
- What is a settlement agreement?
- Should I accept the settlement agreement that I have been offered?
- How do I negotiate the terms of a settlement agreement?
- What does ‘without prejudice’ and ‘protected conversation’ mean?
- Who can I talk to about the settlement agreement?
What is a settlement agreement?
A settlement agreement is a legally-binding contract between an employer and an employee, under which the employee agrees to accept some form of benefit (normally a sum of money) in return for agreeing not to bring particular legal claims against their (former) employer. This is why the agreement is called a “settlement agreement” – the employee is agreeing to “settle” their right to bring certain claims in the Employment Tribunal or civil courts.
Why would I be offered a settlement agreement?
There are a number of reasons why you might be offered a settlement agreement – among others:
- Your employer could be worried about the strength and values of claims that you might have against them, and therefore might be offering you the settlement agreement in order to settle those claims;
- Your employer could offer settlement agreements to departing employees as a matter of practice in order to neatly conclude the termination and avoid ‘loose ends; and/or
- Your employer’s legal advisers might advise them to offer a settlement agreement for another reason (for example to reinforce restrictive covenants that you are subject to, impose fresh obligations of confidentiality, ensure your assistance with a matter after termination of employment)
Do I have to accept the settlement agreement offered?
The short answer is no, you do not have to sign a settlement agreement. However, it’s almost always a good idea to carefully consider what you are being offered by your employer in order to allow you to make an informed decision about how to proceed: consider what you want out of the situation; whether you would be prepared to go back to your job if you reject the settlement agreement; and whether what you want (in terms of your settlement agreement) is achievable.
A good tip is to speak to different people that you feel that you can trust in your situation: speak to family, friends, and employment lawyers – you will want to gather opinions from both people who know you well and, also, people who can offer you practical, realistic and expert advice on your situation (i.e. the lawyers). Lots of lawyers are happy to have a free initial consultation with you (we also offer this) in order to give you some guidance on what they think of your situation and what they would advise as next steps.
Should I accept the settlement agreement that I have been offered?
You generally have three options if you have been offered a settlement agreement:
- Accept the settlement agreement;
- Negotiate it; or
- Reject it
These options are explained in more detail below.
Accepting the settlement agreement
One option to you is, of course, to accept the settlement agreement that you have been offered. However, unless the offer that you are being presented with is absolutely incredible it is, in my experience, generally advisable to – prior to accepting the settlement agreement – seek legal advice from an employment solicitor and then to try and to negotiate what you can in the agreement. The general rule is that ‘if you don’t ask you don’t get’ and there are almost always clauses in settlement agreements which need to be negotiated to render them fair.
Negotiating the settlement agreement
As above, it is generally advisable to try and negotiate the terms of your settlement agreement before accepting it. The most common types of clauses to negotiate are (among others):
- The compensation payment;
- The other financial terms (notice pay, holiday pay, bonus, commission etc.);
- Any restrictive covenants that you may be bound by;
- The confidentiality clauses under the settlement agreement;
- The tax indemnity clause
Rejecting the settlement agreement
In my experience it is generally not a good idea to reject the offer of a settlement agreement without even trying to negotiate the terms first – unless you make a counter-offer you won’t know whether what you want to negotiate is achievable. Almost always try and negotiate the terms first.
Get specialist legal advice
You might say: this guy is an employment lawyer, of course he is going to say this. However, employment solicitors are expert in (you guessed it) employment law and settlement agreements – we know what we’re doing, what we’re looking for, and what is achievable with your settlement agreement. Give a lawyer a call first in order to explore what they think can be achieved in your situation and then, if you’re comfortable with that lawyer, consider whether you want to formally instruct them (your employer will almost always pay towards the cost of the legal advice for your settlement agreement).
How do I negotiate the terms of a settlement agreement?
The core tips for negotiating a settlement agreement are as follows:
- Use any personal connections that you have with management to negotiate your deal;
- Set out clearly to your employer what benefits you wish to receive under the terms of the settlement agreement;
- Deal with the negotiations with your employer calmly and courteously;
- Don’t always accept the first offer that your employer makes; and
- Check the terms of any settlement agreement offered carefully
What does ‘without prejudice’ and ‘protected conversation’ mean?
The ‘without prejudice‘ rule generally prevents oral or written statements made in a genuine attempt to settle an existing dispute from being put before a court or tribunal as evidence of an admission adverse to the interests of the party that made the statement. What this means is that things said under the ‘without prejudice’ label cannot generally be used against the other party in a subsequent claim.
A ‘protected conversation’ (also known as a “pre-termination negotiation” is a legal ‘off the record’ discussion that you can have with your employer regarding concerns that your employer may have about your continued employment (for example, regarding your performance) and any settlement package that they are prepared to offer you. Essentially, it allows a ‘full and frank’ chat between employer and employee and means that the contents of any conversation (in certain circumstances) are not admissible for the purposes of an Employment Tribunal claim (i.e. neither party can use it as evidence).
Speak to one of our expert employment solicitors about your case
If you would like advice on a settlement agreement then call one of our expert employment solicitors for a free consultation to discuss a potential Employment Tribunal claim today
020 3397 3603
Who can I talk to about the settlement agreement?
As we mention above, talk to whoever you think can offer you good advice on your situation: your family, your friends, and expert lawyers.
The only people that you should not talk to about the settlement agreement whilst you are negotiating it are your workplace colleagues – if your employer finds out that you are discussing the terms of your settlement agreement with your colleagues then it could have adverse consequences for the negotiations.