While a protected conversation is usually initiated by the employer, an employee may also request it if it is done in order to reach a settlement agreement. Pre-termination negotiations are often conducted by human resources or management when attempting to terminate an individual`s employment relationship under a settlement agreement. A settlement agreement is a legally binding document that prevents the employee from making certain claims against the company, usually for a sum of money. To propose a settlement agreement offer to an employee, you must have an „informal“ conversation. There are two types of informal meetings that an employer could hold: alternatively, the formal process could be initiated first by initiating a disciplinary or performance process, and an informal discussion could be introduced at a formal meeting. It is not necessary for an employer to inform an employee in advance that they intend to discuss a possible exit and settlement agreement. ACAS has developed a Code of Conduct for Settlement Agreements (ACAS Code), which recognizes that there is also no legal right for employees to be accompanied during preliminary negotiations. However, the ACAS Code goes on to state that it is good practice for an employee to be accompanied to these meetings by a co-worker or union representative. It could also be to the employer`s advantage, as it could reduce the risk that the employee would later claim that the employer behaved inappropriately in the conduct of section 111A negotiations. A settlement agreement can be used by either party to a dispute to resolve a problem or terminate employment. You must also follow the CASA Code of Practice for Settlement Agreements. Your employer should give you a reasonable amount of time to review a proposed settlement agreement.
ACAS recommends 10 days, although in practice, employers rarely give that much time. Before starting discussions, make sure you have received professional advice from a recruiter or lawyer to clearly know if the discussion makes sense, what outcomes and responsibilities are possible, and how much an agreement is likely to cost you. We recommend that you at least ask to be accompanied to the meeting. However, if your employer does not allow it, you should participate alone if you feel able to do so. To show that the agreement is a real alternative, it is good that employers have an alternative formal procedure to fall back on in case an agreement cannot be reached. When introducing the settlement option, the employer may either arrange a meeting with the employee concerned to inform him or her of the relevant disciplinary or performance issues and that formal proceedings will be initiated in the near future in relation to these concerns, but that the option of a confidential discussion is available beforehand. 8. It`s best to enter the conversation with a script to make sure you stay neutral when you come up with an offer. Also, you should always save any conversation you`ve had in which an offer was made with something in writing and give the employee some free time to review the offer.
Anything written that you intend to be without prejudice should be marked as such. You do not have to accept a proposed settlement agreement. In fact, the law does not allow you to accept it until you have sought legal advice to do so. The costs of such legal advice are generally borne by the employer. If you or your employer propose to end your employment relationship through a settlement agreement, the law requires both parties to keep the conversation confidential. It is always best to seek advice if you plan to enter into pre-termination negotiations with an employee. We can help you prepare a script for the interview, prepare letters of offer, settlement agreements and also calculate a suitable offer. Without prejudice to or prior to termination of employment, meetings are a valuable tool for employers when there is no appetite to conduct a lengthy disciplinary or performance management process. However, employers should be aware that it is crucial to make the process correct, otherwise protected conversations could be allowed in any subsequent legal proceedings. Model Settlement Agreement for Employers for Adjustment. Microsoft Word format.
It is my understanding that under section 111A of the Employment Rights Act 1996, this meeting should take place in a protected conversation. Indeed, it is unlikely that a protected conversation will be considered a service to the employer. It is a way to explore the possibility of ending the employment relationship with an agreed settlement. It is acceptable for an employer to offer a settlement agreement to an employee on vacation. There is no legal right to be accompanied during a protected conversation. Unlike disciplinary or complaint hearings, you can`t insist that a colleague come to the meeting with you. We recommend that you speak to a lawyer from the beginning. There may well be room for a better settlement agreement to be negotiated.
If the employee wishes to conduct the interview, the employer must inform the employee that an alternative to initiating or continuing disciplinary or benefits proceedings may be to enter into a settlement agreement, which would constitute a consensual agreement to terminate the employee`s employment relationship. The employer must be careful not to imply that the employee will inevitably be fired if they refuse to participate in the protected conversation – this would likely amount to inappropriate behaviour and make the discussions admissible. .