Settlement agreements: 10 things to think about to ensure you receive a fair deal

settle_your_differencesIt can be a daunting prospect to be faced with being offered a settlement agreement by your employer. There are a number of considerations you need to think about with your lawyer to ensure the best possible deal.

A settlement agreement is a legally binding document setting out the terms and conditions surrounding the termination of your employment. By signing such a document you are agreeing to effectively waive any claims you may have arising out of your employment and the termination thereof. Given the legal effect of a settlement agreement, is important therefore to try to negotiate the best deal possible for you.

At iLaw we have over 20 years of experience negotiating settlement agreements (previously known as compromise agreements) on behalf of clients.

Here are our top 10 considerations we identify to clients to ensure they get a fair deal:

1.THE COMPENSATION AMOUNT

You should try as far as possible to maximise the financial terms of the settlement. With this in mind, the amount of money you are being offered under the settlement agreement as an ex gratia sum as compensation for loss of employment ought to reflect the likely value of the potential legal claims you may have arising out of your employment and its termination.

As part of the advice your independent adviser ought to give when taking you through the terms and effect of your settlement agreement they ought to identify any claims you may have against your employer arising out of your employment and their (respective) value(s).

Since you will be effectively be waiving any such claims by signing a settlement agreement, it is important to ensure you are adequately compensated for doing so.

If you are unhappy with the ex gratia amount being offered compared to the value of your potential claims arising out of your employment and the termination thereof you can seek to try and negotiate a higher figure. Your independent adviser can assist in carrying out this negotiation on your behalf and pass on the cost by seeking a higher cost contribution from your employer for advising under the agreement.

Your employer though is not obliged to agree this request and indeed it may not be in their interests to do so. In such circumstances you would remain responsible for any additional legal costs.

2. TAX LIABILITY

 Where a payment is made on termination of employment (including any redundancy payment) and expressed as compensation for loss of employment, the first £30,000 will be treated as exempt from tax up to £30,000. Any excess will be subject to income tax deductions in the normal way.

If the termination date is close to the end of the tax year you may find it tax efficient to move the termination date into the next tax year or to stagger payments under the settlement agreement into the next tax year.

3. PAYMENT IN LIEU OF NOTICE

 Where your employer does not require you to work your notice period, then you ought to be entitled to receive payment in lieu of notice (commonly referred to as ‘PILON’).

You ought to refer to your contract of employment in the first instance for the length of your notice entitlement. Where your contractual notice entitlement is relatively short and you have been working for your employer for a number of years it may be that statute will intervene to provide you with a longer notice entitlement. Legal advice ought to be obtained in this regard.

Where there is no PILON clause in your contract of employment and your employer does not typically pay its employees PILON on termination of employment, a sum representing the equivalent of the notice period can often be paid tax free up to £30,000.

Where your contract of employment contains specific PILON provisions though whereby your employer reserves the right to pay you money in lieu of notice rather than making you work your notice period then payment of your PILON is regarded as contractual. Even where there is no PILON clause in your contract of employment itself, where your employer typically pays its employees PILON on termination as a matter of custom and practice then HMRC may regard this entitlement as an implied contractual PILON (or auto PILON as it is often referred to) and therefore taxable. In both circumstances, HMRC will expect your employer to specifically refer to this payment being made in the settlement agreement and to make appropriate deductions for tax.

Sometimes employers attempt to include PILON as part of the ex gratia lump sum under a settlement agreement. Where there is a PILON clause in your contract of employment or an auto PILON situation arises in your case, if HMRC investigates the payment as they are entitled to do, you may find yourself personally liable to pay the necessary deductions yourself whether under any tax indemnity contained in your settlement agreement or otherwise.

4. HOLIDAY PAY

 We always insist that the number of days untaken paid holiday entitlement which you have accrued up to and including the date of termination of employment is specified in the settlement agreement to avoid any misunderstandings or disputes later on.

It is particularly important to specify the amount of untaken holiday entitlement you have accrued in the agreement itself as you will be unable to take any action to claim additional untaken paid holiday entitlement after signing the settlement agreement because you will have waived your right to do so under the agreement.

If you are receiving payment in lieu of having to work your notice period, then, strictly speaking, you are not entitled to compensation for any period of paid holiday entitlement that would have accrued to you during your notice period.

5. BONUS

 Some contracts of employment specify that entitlement to bonus is discretionary and where employment ends or where notice is served before bonus is due to be paid out, entitlement to bonus is lost. This does not prevent you though from still seeking to argue that you ought to be entitled to bonus.

Where you would ordinarily be entitled to receive a bonus, have worked for a significant proportion of your bonus year and the bonus amounts are readily quantifiable you can ask your employer to pay a pro-rata sum in respect of bonus under your settlement agreement.

As with all payments you consider you ought to be entitled to on termination of employment, you must ensure your settlement agreement expressly provides for bonus entitlement including the amount due. Unless your settlement agreement does so you are unlikely to receive any bonus payment you will be unable to take any action to claim bonus after signing the settlement agreement because you will have waived your right to do so under the agreement.

6. TERMINATION DATE

 The termination date contained in the settlement agreement ought to be reasonably contemporaneous with the date you and your employer both signed it.

If the settlement agreement is entered into a number of months before the termination date then this may put in jeopardy the tax free status of any ex gratia payment.

In such circumstances, HMRC may seek to argue that part or all of the termination payment represents an inducement for the employee to continue to perform services for the employer for the interim period between the date of signing the agreement and termination date and will treat it as taxable.

7. REASON FOR TERMINATION

 Often employers include wording that termination is ‘by mutual consent’. Such wording though may once again jeopardise the tax free status of any ex gratia settlement payment.

 The reason for termination specified in the settlement agreement may be relevant also if you have income protection insurance, for example as part of a house insurance policy. Some insurance policies only pay out if the reason for termination of employment is redundancy and will ask documentary evidence to be provided of this.

8. REFERENCE

 It is important that you are provided with a reference on termination of your employment to assist you with obtaining new employment and that you are satisfied with the content.

There is no legal obligation on an employer to provide a reference and employers are therefore entitled to refuse to provide references.

For this reason your settlement agreement ought to contain a term providing that your employer will respond to any request for a reference from a prospective employer in writing in accordance with the agreed form of reference attached and further that any verbal reference provided will be in no less favourable terms.

It is common practice for employers to provide short form references, which give little more information beyond your dates of employment and job title.

It may be possible to agree an improved form of reference which includes additional information about your duties and responsibilities, skills and capabilities and any milestones/ achievements in performing your role which casts you in a more positive light.

Be warned though that sometimes a more detailed reference can lead a prospective new employer to suspect that an agreed settlement was negotiated by lawyers in relation to your previous employment and lead to them asking questions regarding the precise circumstances surrounding termination thereof.

9. NON BAD MOUTHING PROVISIONS

 Your settlement agreement will typically include a restriction preventing you from making any adverse or derogatory remarks about your employer or do anything to bring them into disrepute

We always recommend ensuring the agreement includes reciprocal non bad mouthing provisions on your employer that it will use reasonable endeavors to ensure that its employees and officers do not make any adverse or derogatory remark about you or do anything to bring you into disrepute also.

10. RESTRICTIVE COVENANTS AND GARDEN LEAVE

 Restrictive covenants (or post-termination restrictions as they are sometimes called) are often included in a settlement agreement. These provisions are either specifically drafted for the purposes of the settlement agreement or reference is included that you will continue to be bound by your existing restrictions contained in your contract of employment.

Such post termination restrictions are only ever enforceable to the extent that they are necessary to protect the legitimate business interests of the employer.

Post termination restrictions also need to be closely defined in terms of duration and scope if they are to be enforceable.

Typical restrictions include:

  • Non-competition;
  • Non solicitation of clients/ customers;
  • Non dealing with clients/customers;
  • Non solicitation of key employees; and
  • Non-interference with suppliers

No compete restrictions are particularly draconian preventing you from working for a competitor for a period of time post termination of your current employment, effectively therefore amounting as a fetter on your ability to obtain alternative employment. In this context you need to look at the amount of compensation on offer under the settlement agreement compared with any period of time during which you will be constrained.

As part of a negotiation on a settlement agreement we always endeavor on our clients’ behalf to get any problematic post termination restrictions removed if at all possible or if not the ambit of the restriction in terms of time and scope reduced.

Also the settlement agreement should state that any post termination restrictions your employer wants to hold you to should be reduced by any period for which you are on garden leave as such a period will effectively already constrain you from working/ dealing with customers, employees and suppliers. See below for more on garden leave.

Where you employer has acted towards you in a manner which could be said to be in breach of contract it may be possible to argue,  by virtue of this breach, that any post termination restrictions fall away and are no longer effective.

 Your settlement agreement may provide that you are placed on a period of what is commonly referred to as ‘garden leave’ until the end of your employment.

This effectively means you are not being required to attend your employer’s offices and you may be restricted in the contact that you can have with clients/other staff.

Most employees are perfectly content to be put on garden leave (subject to the length of garden leave required of them) as they will continue to receive full salary and accrue paid holiday entitlement for this period without having to work.

In such circumstances, you still need to remember that whilst you are not required to attend work you remain an employee and are still subject to your employer’s authority, instructions, policies and procedures. So for example, if you are asked to cooperate with them on providing information as part of a work handover you are still obliged to do so. Also if you decide you want to go on holiday you should book time off in the normal way and obtain approval first.

NEXT STEPS

If you have been offered a settlement agreement you need to take independent legal advice on the agreement before it can be considered legally binding. Your employer normally agrees to contribute a fixed amount towards your legal fees for obtaining that advice under the terms of the settlement agreement.

At iLaw we do not charge more than the cost contribution provided by your employer for obtaining this advice. Call us today on 0207 489 2059 OR 07525618363 for a FREE initial consultation or to make an appointment. Also check out our specialist settlement agreement page .

settle_your_differences

Advertisements

Top 10 strategies for employers handling redundancies

settle_your_differencesIntroduction

In order to remain commercially competitive it is important businesses review their staffing needs on a regular basis. Even where a business is successful, it is inevitable, that redeployment of labour and redundancies will sometimes be necessary based on prevailing market conditions. This is particularly true in the uncertain times in which we live as a result of Brexit. It is vital if you are considering reducing staff head count due to the prevailing economic circumstances that such redundancies are handled carefully to avoid unanticipated liabilities for your organisation.

Here at iLaw we have over 20 years’ of experience guiding employers through redundancy processes. Here are our top ten tips for employers faced with having to make what we understand and appreciate are difficult decisions:

1. Avoid having to make redundancies in the first place

Developing an effective strategy for human resource planning can help manage current and long term staff needs and avoid the need to make redundancies.

2. Make sure there are good grounds for making redundancies

Even if an organisation has an effective HR strategy in place, sometimes having to make redundancies is inevitable. It is important when considering making redundancies that you are able to justify the grounds as a matter to law to avoid claims for unfair dismissal.

According to the Employment Rights Act 1996 a redundancy situation arises when:

  • the employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was so employed; or
  • the employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed; or
  • the requirements of the business for employees to carry out work of a particular kind has ceased or diminished or are expected to cease or diminish; or
  • the requirements of the business for the employees to carry out work of a particular kind, in the place where they were so employed, has ceased or diminished or are expected to cease or diminish.

3. Adopt a fair selection criterion

The selection criteria for making an individual employee redundant should be fair, objective and consistent. By ensuring this,  this avoids any suggestion the employee has been unfairly selected for redundancy.

As far as possible, objective criteria, precisely defined and capable of being applied in an independent way, should be used. The purpose of having objective criteria is to ensure that employees are not unfairly selected for redundancy. Examples of such a compulsory criteria are:

  • Skills or experience;
  • Standard of work performance or aptitude for work;
  • Attendance or disciplinary record.

4. Make sure in applying the selection criteria it is not tainted by discrimination

The chosen criteria must be consistently applied by all employers irrespective of size. The employer should also ensure that in applying the criteria their decision making is not tainted by discrimination in any way e.g. disability in the context of work attendance and age in the context of experience (the argument being younger employees may have less experience by virtue of their age but that does not mean they do not have the skills and capabilities to do the job in question).

5. Consider voluntary redundancies

One acceptable method in terms of a non-compulsory selection criteria is for employees to volunteer to be considered for redundancy and for the employer to select from the list of volunteers those employees who are to be dismissed.

This has the advantage of avoiding the need for compulsory redundancies, with a less demoralising and disruptive effect on the workforce. It is not uncommon to offer enhanced redundancy payments as an incentive to attract people to leave. In situations where the number of volunteers exceeds requirements, employers should be alert to the potential reaction of some employees not selected and consider in advance how best to deal with this.

The disadvantage of going down the voluntary redundancy route is that sometimes those volunteering for redundancy may be the employees with the superior skills and capabilities (as a result of which they are more confident of obtaining alternative employment) and therefore the ones the employer would prefer to retain.

6. Follow a fair redundancy procedure

Put into place an effective redundancy policy that sets out the redundancy process step by step. This will help employees understand the procedure that will be followed before it takes place. It also provides employers with the structure and framework to be followed. Fair and appropriate procedures need to be followed to avoid unanticipated liabilities for unfair dismissal even where there are good grounds for making a redundancy.

The essence of a fair redundancy procedure established by UK employment case law is:

  • Warning;
  • Consultation; and
  • Notice

Dealing with each of these three limbs in turn:

7. Warning

The employer should meet with the employee and give them warning that their role has been POTENTALLY identified for redundancy explaining the underlying grounds. It is just that, that the role is potentially redundant. It is important at this stage not to say anything that would suggest the employer has made the decision to make the position redundant terminate the employee’s employment. To do so would risk prejudicing the entire consultation process rendering the dismissal potentially unfair and opening the employer to a claim.

The employer should follow up the meeting with a letter to the employee confirming the following:

  • The reasons for having to make redundancies; and
  • Stating the employee’s role has been identified as a result as being potentially redundant; and
  • Explaining the consultation process that will follow with dates for the next meeting to take place as part of that process.

8. Consultation

Consultation should take place as soon as possible following the initial meeting at which warning of potential redundancy is given. The purpose of consultation is for both sides to explore the available options. It presents an opportunity for the employee to pitch ideas as to how the redundancy can be avoided. For the employer it presents an opportunity to listen to such ideas as well as to identify whether there is a suitable alternative role for the affected employee(s), so as to avoid having to give notice of termination of employment at the end of the consultation period.

NB employers who propose to dismiss as redundant 20 or more employees at one establishment over a period of 90 days or less have a statutory duty to consult representatives of any recognised independent trade union, or if no trade union is recognised, other elected employees. This is in addition to the employer’s obligations to consult individually with the employees.

9. Notice

At the end of the consultation period (and not before), if employer and employee have not been able to identify a way of avoiding the redundancy crystallising or suitable alternative employment for the employee then the employer should meet with the employee again to confirm the redundancy is confirmed and give notice of termination of employment. The employer should follow up the meeting with a letter confirming in writing the following:

  • Confirmation of the redundancy; and
  • The planned date for termination of employment; and
  • The employee’s entitlement to a redundancy payment whether under statute (assuming the employee meets the 2 year qualifying criteria for such a payment) or under the employer’s redundancy policy if it includes provision for an enhanced redundancy payment; and
  • The employee’s contractual entitlements on termination of employment including (but not limited to) the following elements:
  • Notice or payment in lieu of notice if the employer does not want the employee to work their notice period; and
  • Accrued but untaken holiday entitlement due up to the date of termination of employment; and
  • Any commission earnt or bonus due on termination in accordance with the employer’s scheme rules

This list is not intended to be exhaustive.  You should refer to the employee’s contract of employment to check the full extent of the financial entitlements due on termination of employment.

10. Consider offering a settlement agreement

Settlement agreements offer employers a clean and effective means of dealing an employee being made redundant providing protection against the employee seeking to claim they have been unfairly dismissed following termination of employment. Typically the employee is offered an enhanced redundancy payment in return for waiving any legal claims they may have against their employer arising out of their employment and its termination. For more about settlement agreements take a look at our article Settlement agreements: 5 top strategies and tips for employers.

Final thoughts

Handled properly, following the tips contained in this article, a redundancy process need not be so daunting for an employer. Are you facing a redundancy situation with your workforce? Why not talk to our dedicated team of employment lawyers here at iLaw?  We can help guide you through the exercise so that it runs smoothly and does not leave you open to the exposure of litigation from affected employees.

Please call the author of this article, Julian Cox who heads iLaw’s employment team to discuss on 0207 489 2059 or e mail him at julian.cox@ilaw.co.uk.

 

 

Settlement agreements: 5 top strategies and tips for employers

ilaw-landing-page-banner-bg-img1Introduction

 With Brexit continuing to cause economic uncertainty in the UK, it is inevitable that some employers are now looking at re-organising and reducing staffing levels. As part of this process businesses often offer departing employees a settlement agreement as a means of protecting themselves from potential litigation arising out of the employees’ employment and its termination.

A settlement agreement (previously called a compromise agreement) is a legally binding confidential agreement between an employer and employee. A severance payment is typically given in return for the employee’s agreement not to pursue any employment tribunal or civil courts claims arising from their employment or its termination. A settlement agreement can also provide an opportunity for employers to secure additional protection in relation to its business needs in the context of the employee’s future business activities, including reaffirming post-termination restrictions and duties of confidentiality, while preventing employees from bad-mouthing their ex-employer.

At iLaw, we have over 20 years’ experience putting together commercially focused and robustly drafted settlement agreements on behalf of employers.

Here are our top 5 strategies for using settlement agreements based on our skills and expertise in this area:

1. Settlement agreements are a useful tool when an employer is faced with insurmountable workplace issues surrounding a particular employee

Settlement agreements are a particularly effective tool for employers where they cannot see a way forward in terms of an employee’s continuing employment but resolving the situation presents challenges. For example, where it may be difficult to justify a particular redundancy. Work performance procedures can take months to follow involving having to give a series of warnings before any decision can be taken to dismiss. Settlement agreements are particularly useful in such circumstances because they offer employers a quick and clean method of terminating someone’s employment without having to undertake a long and difficult redundancy, disciplinary or capability process, which usually involves substantial management time.

2. Make sure to pitch any financial settlement under a settlement agreement a commercially appropriate level.

There is no prescribed sum an employer should offer an employee under the auspices of a settlement agreement. The amount will very much depend on the reasons why the employer wants to terminate the employee’s contract of employment, the terms and conditions in the employee’s contract of employment and the likely value of any potential claims they may have arising out of their employment and its termination.

As an employer you are effectively compensating the employee for terminating their employment and not filing an employment tribunal claim. For employees with over two years’ employment you ought to be aware this gives them sufficient continuity of employment to claim unfair dismissal. Even if they can’t fulfil the service requirement for unfair dismissal depending on the background to the dispute they may have a claim for discrimination which needs to be compromised out of.

At the same time as considering making an ex gratia payment to the employee, employers need to ensure that all contractual entitlements (e.g. notice or payment in lieu, holiday entitlement, commission, bonus etc.) are taken care of as part of the settlement.

It’s wise to ensure professional legal advice is obtained and the appropriate settlement amount is carefully calculated based on this before pitching such an offer.

3. Make sure the Employer’s cost contribution is appropriate

 For a settlement agreement to be legally binding as a matter of law, the employee has to take independent advice as to its terms and effect.

Given that, by signing the settlement agreement, the employee is effectively compromising out of any claims they may have arising out of their employment and the termination thereof, it is conventional that the employer pays a contribution towards the legal costs of the employee seeking that advice.

It is important that the cost contribution is sufficient to allow the employee to take considered legal advice regarding the meaning and effect of the settlement agreement.

As an employer, you don’t want to make the contribution too high though so as to encourage the employee to instruct the lawyer to create arguments to try to negotiate a higher settlement figure on their behalf. If you do, you are running the risk of effectively giving the employee the bullets to fire the gun so to speak. Depending on the employment sector in which your business operates, its geographical location and the employee’s level of seniority within the organization, a cost contribution of between £250-500 plus VAT. In some rare cases, employers might not offer any contribution at all, for example, where there are strong grounds to dismiss the employee if they won’t sign the agreement.

4. Ensure any post termination obligations are properly catered for under the settlement agreement

In the case of senior employees and sales staff there may be a concern, with them exiting the business, that they may cause it damage commercially in terms of joining a competitor or trying to poach clients or key employees away from the organisation. If you have identified there is a risk of the business’s legitimate business interests being harmed in this way and they have post termination provisions written into their contracts of employment then it is recommended to refer to these restrictions in the settlement agreement also and make it clear the employee is expected to adhere to these obligations. The same goes for maintaining confidentiality and intellectual property rights. Where the employee does not have any such restrictions contained in their contract of employment then the settlement agreement provides an opportunity to write these in. The employee may seek further compensation in return for agreeing to any such post termination restrictions though as they may represent a fetter on their ability to obtain alternative employment in the short to medium term.

5. Give an appropriately focused time limit for signature of the settlement agreement

It is important that settlement negotiations remain focused. You may therefore want to suggest a defined period for consideration and return of the agreement including the Adviser’s Certificate. The Acas Code of Practice on settlement agreements suggests (and it is just that, a suggestion) a period of a minimum of 10 calendar days for the employee to consider the agreement. That ought to be more than sufficient in the circumstances. Many employers state that the offer is open for acceptance for a defined period after which it will be withdrawn. This tends to help focus the mind of the employee.

We hope this article has been useful. If your business is considering offering an employee (or a number of employees even) a settlement agreement we would be very happy to talk to you about strategy generally and how to tailor the agreement(s) to your organisation’s business needs. Please call the author of this article, Julian Cox who heads iLaw’s employment team to discuss on 0207 489 2059 or e mail him at julian.cox@ilaw.co.uk.