EMPLOYMENT LAW & PRACTICE
Varying Terms & Conditions & Negotiating Settlements
Outcomes
By the end of this unit, you should be able to:
✓ Advise an employer on the implications of varying employees’ contracts of employment
and devise a strategy for dealing with variations.
✓ Assess the strengths and weaknesses of a client’s case in preparation for negotiation of a
settlement.
✓ Conduct a negotiation on behalf of a client and advise as to the most appropriate method
of recording a settlement.
Unit Workshop Tasks
In this unit workshop you will:
✓ Review your answer to the Preparatory Task.
✓ Advise your employer client on the steps to be taken to implement a variation of
employees’ contracts of employment.
✓ Represent a party in the Hilary Baker Case Study and prepare for and attempt to negotiate
a settlement of the claim.
o You will present a report to the class regarding the outcome of the negotiation.
o If a settlement has been achieved, you will decide upon the most appropriate
method of recording the settlement.
Contents
Settlements 2
Varying Terms and Conditions 6
not for resale or distribution
, EMPLOYMENT LAW & PRACTICE
Settlements
Ch 6.5 p290
ERA 1996, s203 • Settlement agreements essentially involve an employee contracting out
6.5.1 of his subsequent entitlement to bring a claim.
• As such there are strict requirements which agreements must comply with
to ensure they are valid.
s203 of the ERA 1996 a provision in a settlement agreement is void if it:
• Purports to exclude or limit the operation of any of the provisions of
the Act, or to
• Preclude a person from bringing any proceedings under the Act
before an employment tribunal (this prevents an employee waiving their
statutory rights – such as relating to unfair dismissal, redundancy payment,
discrimination or holiday pay, unless:
(a) a conciliation officer has taken action under s 18 of the ETA 1996;
or
(b) a written agreement (a ‘settlement agreement’) is entered into.
• Other than involving ACAS, a settlement agreement is the only way which
an employee can effectively waive any statutory claims.
ACAS • An ACAS conciliation officer has taken action under s18 of the
Settlements Employment Tribunals Act 1996.
6.5.2 o I.e., the Acas Conciliation officer has been involved in promoting
settlement and ensured that both parties understand its effect.
▪ Does not have a duty to ensure the settlement is fair (Moore
v Duport Furniture Products Ltd [1980] IRLR 158, CA)
• Any settlement achieved this way is recorded on a COT3
o A COT3 will be a legally binding and enforceable contract.
• Possible to exclude all possible claims by the employee in return for the
settlement, but care should be taking in the drafting.
o In Bank of Credit and Commerce International SA (in liquidation) v
Ali and Others (No 1) [2001] 2 WLR 735, the House of Lords held
that a COT3 agreement containing a general release under which
the employee accepted an additional payment on being dismissed
for redundancy which was expressed as being ‘in full and final
settlement of all or any claims whether under statute, common law
or in equity of whatsoever nature that exists or may exist’ did not
preclude a claim for ‘stigma’ damages which the parties could not
have contemplated at the time the agreement was signed because
not for resale or distribution
Varying Terms & Conditions & Negotiating Settlements
Outcomes
By the end of this unit, you should be able to:
✓ Advise an employer on the implications of varying employees’ contracts of employment
and devise a strategy for dealing with variations.
✓ Assess the strengths and weaknesses of a client’s case in preparation for negotiation of a
settlement.
✓ Conduct a negotiation on behalf of a client and advise as to the most appropriate method
of recording a settlement.
Unit Workshop Tasks
In this unit workshop you will:
✓ Review your answer to the Preparatory Task.
✓ Advise your employer client on the steps to be taken to implement a variation of
employees’ contracts of employment.
✓ Represent a party in the Hilary Baker Case Study and prepare for and attempt to negotiate
a settlement of the claim.
o You will present a report to the class regarding the outcome of the negotiation.
o If a settlement has been achieved, you will decide upon the most appropriate
method of recording the settlement.
Contents
Settlements 2
Varying Terms and Conditions 6
not for resale or distribution
, EMPLOYMENT LAW & PRACTICE
Settlements
Ch 6.5 p290
ERA 1996, s203 • Settlement agreements essentially involve an employee contracting out
6.5.1 of his subsequent entitlement to bring a claim.
• As such there are strict requirements which agreements must comply with
to ensure they are valid.
s203 of the ERA 1996 a provision in a settlement agreement is void if it:
• Purports to exclude or limit the operation of any of the provisions of
the Act, or to
• Preclude a person from bringing any proceedings under the Act
before an employment tribunal (this prevents an employee waiving their
statutory rights – such as relating to unfair dismissal, redundancy payment,
discrimination or holiday pay, unless:
(a) a conciliation officer has taken action under s 18 of the ETA 1996;
or
(b) a written agreement (a ‘settlement agreement’) is entered into.
• Other than involving ACAS, a settlement agreement is the only way which
an employee can effectively waive any statutory claims.
ACAS • An ACAS conciliation officer has taken action under s18 of the
Settlements Employment Tribunals Act 1996.
6.5.2 o I.e., the Acas Conciliation officer has been involved in promoting
settlement and ensured that both parties understand its effect.
▪ Does not have a duty to ensure the settlement is fair (Moore
v Duport Furniture Products Ltd [1980] IRLR 158, CA)
• Any settlement achieved this way is recorded on a COT3
o A COT3 will be a legally binding and enforceable contract.
• Possible to exclude all possible claims by the employee in return for the
settlement, but care should be taking in the drafting.
o In Bank of Credit and Commerce International SA (in liquidation) v
Ali and Others (No 1) [2001] 2 WLR 735, the House of Lords held
that a COT3 agreement containing a general release under which
the employee accepted an additional payment on being dismissed
for redundancy which was expressed as being ‘in full and final
settlement of all or any claims whether under statute, common law
or in equity of whatsoever nature that exists or may exist’ did not
preclude a claim for ‘stigma’ damages which the parties could not
have contemplated at the time the agreement was signed because
not for resale or distribution
