You may find it helpful to understand the stages and processes involved in the negotiation of a Settlement Agreement and other steps that may be taken to resolve an employment dispute.
Pre-termination negotiations
In some cases, an employer can approach you to discuss the possibility of agreeing terms with you under which you will leave your employment. This is known as a ‘pre-termination discussion’.
- If they use this procedure correctly, the approach to you and the details of the conversation cannot be referred to before a court or tribunal and you cannot treat the approach as a constructive dismissal, that gives you the right to resign and claim compensation.
- This procedure only applies to ordinary unfair dismissal cases. If you have grounds for a claim of discrimination or whistleblowing, the employer would not be protected in the same way.
Without Prejudice Negotiations
‘Without prejudice’ is the phrase used in correspondence and discussions to indicate that the information exchanged is not intended to be made known to a court or tribunal.
- In the context of an employment relationship, this procedure can only be used where there is a ‘dispute’ between the employer and the employee. If there is no complaint by one party against the other, the protection is not available.
- If it is available, it will cover discussions relating to situations where there may be claims of discrimination or whistleblowing.
- If procedure is available, but it is used in the wrong way, for example, the employer uses it for an improper purpose, the benefit of the protection will be lost.
Negotiations through ACAS Conciliation or other dispute resolution processes
Before a claim is commenced via proceedings in the Employment Tribunal, you have to take part in a conciliation process through ACAS. This is known as ‘ACAS Early Conciliation’.
- The role of the ACAS conciliator is to explore the parties’ respective cases and positions and to try to bring about a settlement to avoid the need for Employment Tribunal proceedings.
- This may lead to terms of settlement that are better than those your employer was willing to offer during original negotiations on the Settlement Agreement itself. If these are accepted, there will normally then be an ACAS COT3 settlement rather than a Settlement Agreement.
- If the ACAS Conciliation fails to lead to a settlement and proceedings are commenced, there may further negotiations in the course of the proceedings with a view to avoiding this need for the cost and risk for both sides in the hearing of the case.
In a complex or protracted case, detailed negotiations may take place direct between the parties or their advisers’ directly through private mediation or by judicial mediation (a mediation facilitated by an Employment Judge). All such negotiations have the objective of endeavouring to bring about agreed terms of settlement.
For more information on the negotiating process, please email info@gssettlementagreements.co.uk or contact the team on 020 8305 3544.