Legal Connect

What is a Settlement Agreement? 

A settlement agreement (formerly known as a compromise agreement), is a legally binding agreement setting out mutually agreed terms reached between the parties.  Amongst other things it details the compensation/severance payment agreed to be paid to the employee (or former employee) in return for their agreement to bring their employment relationship to an end (where applicable) and not to pursue any potential claims in an Employment Tribunal or Civil Court.  

When is a Settlement Agreement likely to be used?

In the education sector, settlement agreements may be explored in circumstances where working relationships have irretrievably broken down; where there are cases concerning disciplinary, capability or ill-health concerns or where procedures have already been implemented or where an employer may be proposing redundancies. 

What terms can be included in a Settlement Agreement?

Whilst the settlement agreement will reflect the terms agreed during the negotiation process; which is normally in relation to the compensation/severance payment that has been agreed, entitlement to any notice pay and holiday pay, the settlement agreement can also include additional clauses reflecting:

•    Confidentiality, that is confidentiality surrounding the negotiations, existence and contents of the agreement;
•    Restricting the making of derogatory comments; 
•    Confirming the individual waives their right to bring a claim covered by the agreement i.e. the right to make a claim to an Employment Tribunal or Civil Court.
•    Withdrawal of grievances and/or internal processes;
•    Return of employer property;
•    Agreed announcement;
•    Agreed reference.

How can Legal Connect help you?

With our experience we can not only help employers during the negotiation process to ensure the best possible terms for you are agreed, but we can assist you in the drafting and finalising of the Settlement Agreement making sure the process is as efficient as possible for you. 

Who is ACAS?

The Advisory, Conciliation and Arbitration Service (“ACAS”) is an independent public body which provides free guidance on workplace rights and procedures.  

What is the ACAS early conciliation process? 

Before an individual is able to pursue a formal claim in the Employment Tribunal in relation to a workplace dispute they must notify ACAS first.  Following such notification the individual will be given the opportunity to explore ‘early conciliation’ with the employer.  This is a form of dispute resolution to help resolve any dispute before the matter may move towards the formal tribunal process.  If the parties wish to explore conciliation they will have a period of time, up to 6 weeks, in which to explore any form of resolution. 

The ACAS early conciliation is free to both parties, and neither parties are mandated to take part. 

What is the benefit to an employer in partaking in early conciliation?

The ACAS early conciliation process provides the employer with the opportunity to assess their position with regards to the dispute in question.  The Tribunal process can be costly and time consuming, and this avenue allows the employer to assess the merits of any potential case from both a legal claim and commercial perspective, as well as considering any reputational considerations.   It can also be beneficial in maintaining the working relationship where an individual is seeking to raise a workplace dispute whilst they remain employed. 

What happens if ACAS early conciliation is successful?

If a resolution can be reached, then the parties will seek to agree the terms of a COT3 agreement.  Once the settlement terms are agreed the agreement will become legally binding and the employee will not be able to proceed with the matter to an Employment Tribunal.

What happens if ACAS early conciliation is not successful?

If a resolution cannot be reached, or the parties do not wish to partake in early conciliation ACAS will issue an Early Conciliation Certificate, following receipt of this an individual can then issue a formal claim within the Employment Tribunal.  

It is to be noted the entire early conciliation process is confidential. 

How can Legal Connect help you?

As referenced above the ACAS early conciliation process can provide employers with an opportunity to assess their position before being faced with a formal claim in the Employment Tribunal.  Legal Connect can help undertake an assessment as to the merits of any potential claim, and whether it would be beneficial for the employer to partake in any form of settlement discussions at that stage.  Legal Connect can also support the employer in undertaking such negotiations, which from a legal representative can often hold more credence, and the drafting and finalisation of any COT3 Agreement if settlement is reached.  

What is a COT3 Agreement? 

A COT3 agreement is a legally binding agreement setting out mutually agreed terms reached between the parties during ACAS early conciliation (that is prior to a formal employment tribunal claim being issued) or during the employment tribunal process.

A COT3 agreement can only be used where ACAS has been involved in conciliating in relation to a workplace dispute.

What is the difference between a Settlement Agreement and a COT3 Agreement?

It is permissible to enter into a Settlement Agreement to record the terms reached during a conciliation process, however in practice this is often done by way of a COT3 Agreement.  This is usually because:

-    A Settlement Agreement has to comply with strict statutory requirements in order to be legally binding, and so often is much lengthier than a COT3 Agreement;

-    There is no legal requirement for an individual to seek independent legal advice prior to signing a COT3 Agreement, as there is with a Settlement Agreement, and therefore no need for provision within a COT3 Agreement to cover the costs of the individual seeking such advice;

-    A COT3 Agreement will usually be signed on behalf of the parties by their respective representatives as opposed to the parties themselves. 

What terms can be included in a COT3 Agreement?

Whilst the COT3 Agreement will reflect the terms agreed during the negotiation process; there is still scope for including additional clauses concerning:

•    Confidentiality, that is confidentiality surrounding the negotiations, existence and contents of the agreement;
•    Restricting the making of derogatory comments; 
•    Confirming the individual waives their right to bring a claim covered by the agreement i.e. the right to make a claim to an employment tribunal or civil court.
•    Withdrawal of grievances and/or internal processes;
•    Return of employer property;
•    An agreed Announcement;
•    An agreed Reference.

How can Legal Connect help you?

With our experience we can not only help employers during the negotiation process to ensure the best possible terms for you are agreed, but we can also assist you in the drafting and finalising of the COT3 Agreement and making sure the process is as efficient as possible for you. 

What is a Case Review? 

A Case Review can be undertaken at any stage of a matter; for example following a specific complaint being raised by an individual; where internal capability or ill-health processes have been or are about to be embarked upon, or where a disciplinary process is being undertaken. 

A case review can provide you with an assessment as to the employers position with regards to the risks of any legal claims the individual may be seeking to pursue, or has referenced, or can provide you with assistance as to next steps particularly where the case is of a specific complex nature, or where there is any risk of discrimination or safeguarding concerns.

What is the benefit of a Case Review?

A Case Review can provide you with assurances as to your options where processes are to be undertaken, or there are complex considerations as to next steps, for example where there are ill-health considerations, discrimination risks or safeguarding concerns.

In the event an individual has made reference to a potential legal complaint then a case review will allow the employer to have an insight of any potential risks, how these can been reduced or eliminated in the next steps that are undertaken, or whether other avenues could be explored. 

How can Legal Connect help you?

The undertaking of a Case Review will allow an employer to consider their steps with regards to any risks, legal claims and commercial considerations.  We will always provide advice, guidance and support with your best interests at the forefront and to reach a position which places the employer in a position of strength as much as possible.

Legal Connect can provide you with bespoke legal training on any needs you may have, this may include in relation to:
 
-    Internal Processes;
-    Management of ill-health; capability; disciplinary concerns;
-    Safeguarding processes and Managing Allegations against Staff from a conduct perspective;
-    Discrimination from a legal standpoint, including any particular knowledge gap arising from a protected characteristic, including disability and the obligation to make reasonable adjustments; sexual orientation, pregnancy and maternity, gender reassignment, religion and race;
-    Unfair dismissal from a legal standpoint; including with regards to ill-health, capability, conduct, redundancy and other considerations such as the ending of fixed term contracts, breakdown in working relationships, reorganisations;

We can also provide bespoke training sessions in collaboration with our HR Advisory partners to provide you with a full training session from both HR and Legal considerations. 

Please do not hesitate to contact us in relation to any training needs you may have, and we will work together to put in place a bespoke package that meets your needs.