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Issues to consider when drafting a settlement agreement—checklist (employer)

Issues to consider when drafting a settlement agreement—checklist (employer) The employer (and its advisers) should consider the following issues: Preparatory steps • Obtain from the employer: ◦ a copy of the departing employee's latest contract of employment/other relevant documents containing contractual terms (NB these may be in a staff handbook) ◦ details of the contractual benefits enjoyed by the employee ◦ relevant information regarding the employee's pension benefits ◦ relevant information regarding any shares/share options, etc held by the employee? Consider the Articles of Association/any relevant shareholder agreement, share scheme documentation, etc. See also Shares and share options below Status of negotiations • Will negotiations take place between the parties directly, or between their respective legal advisers? • How strong is the employer's negotiating position? How strong are the employee's claims or potential claims? In the case of dismissal, is there a fair reason and has the employer carried out a fair procedure? Is the employer in repudiatory breach? What is the employer prepared to offer initially, and is that...

Benchmarks Regulation—timeline [Archived]

Benchmarks Regulation—timeline [Archived] This timeline has been archived. For developments from January 2024 onwards, see EU Benchmarks Regulation—timeline if they relate to the EU Benchmarks Regulation, or UK Benchmarks Regulation—timeline if they relate to the UK Benchmarks Regulation, For further guidance on the EU Benchmarks Regulation, see Practice Notes: EU Benchmarks Regulation—one minute guide and EU Benchmarks Regulation—essentials. For further guidance on the UK Benchmarks Regulation, see Practice Notes: UK Benchmarks Regulation—one minute guide and UK Benchmarks Regulation—essentials. Date Source Document Description 20 December 2023 Council of the EU Benchmarks: Council agrees its negotiating mandate The Council of the EU has agreed its negotiating mandate on a regulation amending the EU Benchmarks Regulation (Regulation (EU) 2016/1011). The proposed amendments concern the scope of the rules for benchmarks, the use in the EU of benchmarks provided by an administrator located in a third country, and certain reporting requirements. The proposal aims to reduce the regulatory burden on administrators of benchmarks that are not economically significant in the EU by removing them from the scope of current rules. It also intends...

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Taxation of termination payments—settlement agreements

Where an employee has potential claims against the employer under the Employment Rights Act 1996 (ERA 1996) or other employment legislation, or where the employee would otherwise have a claim for breach of contract, a settlement agreement (formerly known as a compromise agreement) can be entered into by the employee and employer to end the employment on the terms set out in that agreement (though there are a few instances under employment law when claims cannot be ended with a settlement agreement). Key managers/shareholders may also sign settlement agreements if they leave employment when the employing company is sold.For a precedent settlement agreement (and drafting notes), see Precedents: Settlement agreement (employment) or Settlement agreement (employment) (short form).By entering into a settlement agreement, the employer has certainty that the employee will have no claim in the future against the employer.Among other things, the settlement agreement will deal with all payments and benefits owing or agreed to be paid to the employee.While the settlement agreement is signed on termination, not all payments...

Settlement agreements in employment—practical and tax issues

This Practice Note examines the practical issues that typically arise relating to an employment settlement agreement (formerly known as a compromise agreement). It also outlines the tax issues that are likely to be relevant, and refers to our related Practice Notes for further detail.For information on the legal requirements (ie the conditions regulating settlement agreements) that must be met in order for a settlement agreement to be binding and valid to settle statutory employment claims, see Practice Note: Settlement agreements in employment—legal requirements.Parties to the agreementIn the case of an individual employer, or a company employer with a simple corporate structure, the employer and the employee will be the parties to the settlement agreement and there will be no need to refer to third parties.However, it may be that the identity of the employer is not straightforward, eg in a more complex corporate structure where:•the employee works, or has worked, for other companies in the employer’s group eg on secondment•the employee performs their work for one company, but is paid...

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Settlement agreement—arbitration

Settlement agreement—arbitration This settlement Agreement is made on [date] Parties 1 [Name of entity], a [type of entity] with [type of liability] incorporated under the laws of [jurisdiction] with its registered address at [address] and with company number [company number] (Party 1); and 2 [Name of entity], a [type of entity] with [type of liability] incorporated under the laws of [jurisdiction] with its registered address at [address] and with company number [company number] (Party 2), each a ‘Party’ and together the ‘Parties’. Recitals: (A) A dispute has arisen between the parties [add relevant detail to give context to the dispute] (the Dispute). (B) On [date], Party 1 commenced arbitration proceedings against Party 2 (the Arbitration). On [date], the tribunal (comprising [arbitrators]) was appointed (the Tribunal). (C) [Provide further background information available to give context to this Agreement, including a brief description of the Arbitration, the arbitration agreement, the rules/procedures governing the Arbitration, whether the Arbitration is being administered by an arbitral institution and the case...

Letter—advice to employee client regarding draft settlement agreement

Letter—advice to employee client regarding draft settlement agreement [insert name and address of client] Private and confidential Dear [insert name] Draft settlement agreement with [name of employer] I enclose a draft settlement agreement[ drafted by your employer’s solicitors] for your review. You will see that[ there are a number of options for you to consider and] there are some parts in square brackets. Please contact me when you have had an opportunity to review the draft so that we can finalise it. I set out below the matters you need to consider in relation to the various clauses. 1 The requirements for, and effect of, a settlement agreement A settlement agreement[ (formerly known as a ‘compromise agreement’)] is a legally binding agreement, designed to enable an employee and their employer to settle any employment claims which arise under statute (eg a claim for unfair dismissal or unlawful discrimination) or under their contract (eg a claim for notice pay) and it is therefore particularly important that the agreement...

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Can a document executed and described as a deed be subsequently validly varied by solicitors’ exchange of emails?

Can a document executed and described as a deed be subsequently validly varied by solicitors’ exchange of emails? The requirements for variation of a deed It was formerly a rule of common law that contracts entered into by way of deed could only be varied by deed. This conflicted with an equitable rule that allowed variation to a deed to be made by way of a simple contract (whether in writing or orally). As a result of section 49 of the Senior Courts Act 1981, which provides that equity prevails in any conflict with the common law, variations to deeds may be made by simple contract. However, it will be necessary to consider the existing status of the deed document, the nature of the proposed amendment and the impact which the amendment will have on either the party entitled or the party liable under the deed. If a document is required by law to be made by deed, any document that amends operative parts of that document...

In the small claims track, if the matter settles after the claim is issued but before the trial is heard, who is responsible for paying the court fee?

In the small claims track, if the matter settles after the claim is issued but before the trial is heard, who is responsible for paying the court fee? We have assumed that the claim is for a specified amount of money. The claimant will already have paid the court fee; the thrust of the Q&A is whether the claimant can recover that cost from the defendant. The only possible answer is: it depends entirely on the nature and terms of the settlement. • if it is a compromise, it depends on the terms of the compromise • if it is based on an admission, and the claimant accepts the amount admitted where a partial admission is made, the claimant is entitled to judgment for the sum admitted, plus costs. On the small claims track, those costs include the issue fee and the fixed recoverable costs in respect of legal representative’s fees When a claim form is issued, it should set out not only the sum actually...

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Unknown future claims can be waived in a settlement agreement if sufficiently particularised (Bathgate v Technip Singapore PTE)

Employment analysis: The various protections for the employee built into section 147 of Equality Act 2010 (EqA 2010) do not exclude the settlement of future claims so long as the types of claim are clearly identified and the objective meaning of the words used encompassed settlement of the relevant claim. A settlement agreement can relate to a future complaint if there is sufficient description of it in the claims waived, according to the Inner House of the Court of Session.

Adjudicators—bias issues when without prejudice material is deployed before them (AZ v BY)

Dispute Resolution analysis: Without prejudice (WP) material was placed before an adjudicator in order to persuade him that a contract had been reached in consequence of negotiations conducted under the WP umbrella. Such material is admissible when it evidences a contract reached as a result of the underlying negotiations. However, where the WP correspondence has not resulted in an agreed settlement which has replaced the original dispute about which the parties were negotiating, the decision-maker, having seen the without prejudice material, must then assess their own ability to go on to decide the remaining dispute fairly, in accordance with the principles which govern apparent bias and the rules of natural justice. The judge concluded that the fair-minded and informed observer considering all of the circumstances of this case would conclude that there was a real possibility that, having seen the WP prejudice material, the adjudicator was unconsciously biased. The court thereby refused to enforce his decision. Written by Colin Passmore, consultant, Simmons & Simmons.

View the latest UK Parliament Acts documents on Compromise agreement

203 Restrictions on contracting out

(1)     Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—(a)     to exclude or limit the operation of any provision of this Act, or(b)     to preclude a person from bringing any proceedings under this Act before an [employment tribunal].(2)     Subsection (1)—(a)     does not apply to any provision in a collective agreement excluding rights under section 28 if an order under section 35 is for the time being in force in respect of it,(b)     does not apply to any provision in a dismissal procedures agreement excluding the right under section 94 if that provision is not to have effect unless an order under section 110 is for the time being in force in respect of it,(c)     does not apply to any provision in an agreement if an order under section 157 is for the time being in force in respect of it,(d)     does not apply to any provision of an agreement relating to dismissal from employment such as is mentioned in...