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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

  1. What is a settlement agreement?
  2. Should I accept the settlement agreement that I have been offered?
  3. How do I negotiate the terms of a settlement agreement?
  4. What does ‘without prejudice’ and ‘protected conversation’ mean?
  5. Who can I talk to about the settlement agreement?

What is a settlement agreement?

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:

  1. 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;
  2. 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
  3. 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:

  1. Accept the settlement agreement;
  2. Negotiate it; or
  3. 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):

  1. The compensation payment;
  2. The other financial terms (notice pay, holiday pay, bonus, commission etc.);
  3. Any restrictive covenants that you may be bound by;
  4. The confidentiality clauses under the settlement agreement;
  5. 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:

  1. Use any personal connections that you have with management to negotiate your deal;
  2. Set out clearly to your employer what benefits you wish to receive under the terms of the settlement agreement;
  3. Deal with the negotiations with your employer calmly and courteously;
  4. Don’t always accept the first offer that your employer makes; and
  5. Check the terms of any settlement agreement offered carefully

We offer some tips on how to negotiate a settlement agreement here.

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).

Protected conversations are explained in more detail here

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

phone-contact020 3397 3603

email-contact enquiries@redmans.co.uk

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.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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    Arabella B

    I am so grateful to Caroline Lewis at Redmans Solicitor’s for helping me with my Unfair Dismissal Case. I was seriously impressed how easy Redmans made the whole case, and am very happy with my Settlement. I have recommended your firm to at least 5 people in the last 3 months.. Thank you Caroline and everyone at Redmans. You are Brilliant .

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    I used the services of Redmans solicitors and was a quick outstanding service I engaged them in a settlement agreement after been made redundant extremely professional at all that was done and would definetly use them again

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    Five Stars I was most impressed by the attention, courtesy, speed and above all, professionalism in dealing with my Settlement Agreement. I would certainly have no problem in recommending this firm to anyone in need of their services.

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    Excellent service all the way through from start to finish. Really great support and guidance from the team, they secured the offer that I wanted. I can't recommend Redmans highly enough and will be sure to use their services again should the need arise.

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    Mel Chin was my Legal Executive when I engaged the services of Redmans Solicitors to help with a redundancy matter. She was incredibly approachable and professional from start to finish. Specially I have to mention regarding prompt reply to all my email queries, It was super quick. I would thoroughly recommend Mel Chin. Many Thanks

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    Sacha was very thorough and very helpful, with great advice on when to act and when to wait on my case.

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    Anonymous

    I have been very pleased with the support I got from Redmans Solicitors on my case with my employer. Caroline has always helped me to put things in perspective and showed me different scenarios ultimately to help me taking the right decision. She was very professional and always available when I needed, and at the same time also emphatic which I found also really important to establish a strong relationship. Will definitely recommend!

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    Anonymous

    Prompt and efficient response to my enquiries. Excellent negotiating skills with my employer which considerably improved the terms of my settlement agreement.

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    Very professional, knowledgeable and kept me informed at every stage of my case. I would highly recommend Redmans.

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    Chris was really good and help solve my issues with current company. I would recommend him to anyone.

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