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SETTLEMENT AGREEMENT AND GUIDANCE NOTES

Drafting notes

This guidance is designed to be read in conjunction with the settlement agreement template. Reference will be made to each clause in turn explaining the principles or good practice behind the content. Front pageThe date of the document should be the day of signing, or the day when the final version is sent to the employees’ adviser for signing.

Confirm the Company name is that specified on the contract of employment

The word ‘DRAFT’ should only be removed when the final version is sent for signing

The words ‘WITHOUT PREJUDICE’ should not be removed from the final version. Once the document is signed it will become open and binding as per the terms set out in clause 15

The words ‘AND SUBJECT TO CONTRACT’ should only be used when the agreement is entered into in England or Wales. This should not be removed from the final version. Once the document is signed it will become open and binding as per the terms set out in clause 15

The words ‘CONFIDENTIAL FOR THE PURPOSES OF S111A OF THE EMPLOYMENT RIGHTS ACT 1996’ should only be used when the settlement agreement has been offered under s111A of the ERA. This should be used in addition to the ‘without prejudice’ wording above.

Second pageThe date of the document should be the day of signing, or the day when the final version is sent to the employees’ adviser for signing.

Confirm with the client the registered address of the Company, as opposed to the address where the employee worked. There is an option for clients who operate as an individual employer or sole trader, as opposed to being a corporate entity.

Confirm the employee name and address as specified on the contract of employment.

The section headed ‘Background’ is apportioned into section A – C. This assists in providing a background which relates to the employment relationship together with the reason and date of termination of employment.

The termination date specified in section C should always precede the date of the agreement for two reasons. Firstly, the agreement will not settle any dispute or claim which arises between the date of the agreement and the termination date. Secondly, where the agreement is signed after termination the employee will be required to enforce the agreement in the civil courts, the tribunal will not have jurisdiction to enforce the agreement.

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The reason for termination should be one of the potentially fair reasons for dismissal. In cases where constructive dismissal is alleged, this should state ‘resignation’.

Clause 1Clause 1 addresses the termination of employment and associated provisions.

There is no requirement to include specific information relating to payment due to the employee up to the termination date, payments in lieu of unused holiday entitlement or information relating to contractual benefits. Clause 1.2 sets out the arrangements in respect of these payments.

Clause 1.4 is an optional clause which can be used where the employer agrees to pay full notice, or the balance in lieu, even where not due. This will be applicable to agreements which settle constructive dismissal or summary dismissal claims, or wrongful dismissals and breach of contract.

Clause 1.5 addresses the ex gratia sum or compensation payment with tax and NIC liabilities being provided for in clauses 1.6 and 1.7.

Any outstanding monies owed to the employer can be provided for in the agreement at 1.8 regardless of the entitlement to make deductions under the employment contract. An additional schedule to the agreement can be used to set out the specific details of the deductions.

Clauses 1.9 addresses how and when the payment will be made to the employee under the agreement will be made.

Clause 1.10 can be removed where the employee does not incur expenses in the normal course of their employment.

Clause 1.11 makes provision for the employer to contribute to the employee’s legal costs for advice in respect of the agreement.

Clause 2Clause 2 sets out the particular proceedings that the settlement agreement relates to. This is a statutory requirement for a valid agreement and therefore needs careful consideration. It is advisable to conduct a full appraisal of the current circumstances and the employment history. In essence these are the agreed claims which will be settled.

The different statutory, contractual and common law claims which can arise are listed in full. Those which are not required should be removed from the draft.

1.1 to 2.4 will be required in the majority of cases.2.5 will apply in all redundancy cases.2.6 will apply where the employee alleges they have suffered detriment on protected grounds. This sub-clause requires to be amended to be specific to the protected ground, all of which are set out. Remove those which do not apply to the specific case.2.7 will apply in respect to claims relating to time off work in specific circumstances. Ensure that the relevant reason for the time off work has been set out.

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2.8 will be required for claims relating to suspension from work on medical or maternity grounds.2.9 will apply in cases where there has been a breach of flexible working or parental leave rights.2.10 should be included in the majority of cases.2.11 will apply in cases of sex discrimination, pregnancy or maternity discrimination, marital or civil partnership status or gender reassignment. This sub-clause requires to be amended to reflect the specific nature of the complaint.2.12 should only be used in equal pay claims.2.13 will apply to equal pay claims and should be amended to reflect the appropriate legislation.2.14 will apply in cases of race discrimination.2.15 will apply in cases of disability discrimination.2.16 will apply in cases of sexual orientation.2.17 will apply in cases of religion or belief discrimination.2.18 will apply in cases of age discrimination.2.19 will apply to breach of contract claims.2.20 will apply to claims in relation to trade union.2.21 will apply to National Minimum Wage claims.2.22 will apply to claims in relation to Information and Consultation Regulations.2.23 will apply to claims in relation to European worker consultation.2.24 will apply to claims in respect of part-time worker rights.2.25 will apply to claims in respect of fixed-term employee rights.2.26 will apply to claims related to itemised pay statement, guarantee payments or written reasons for dismissal.2.27 will apply to claims relating to pensions trustee time off.2.28 should be included in the majority of cases and should be amended to reflect the appropriate claim based on jurisdiction and ties in to clause 3.1.2.2.29 will apply in claims of constructive dismissal based on a fundamental breach of trust and confidence.2.30 include for most agreements, but specifically where the employer is an emanation of state.

Clause 3 Clause 3 confirms that the claims identified within Clause 2 are settled fully and finally by the settlement agreement. This clause also incorporates settlement of any further claims against the employer or an associated company with the exception of personal or industrial injury. Additionally pension benefits which accrue up to the termination date are excluded. Finally, the clause confirms that any claim already lodged against the employer will be withdrawn and no further claim will be submitted in relation to the claims identified in clause 2.

Clause 4 Clause 4 relates to the statutory requirement that the employee has received advice from a relevant independent adviser. The sub-clauses detail each of the specific legislative requirements and should not be amended, varied or removed other than to personalise the agreement and to specify the appropriate jurisdictions.

In the event that the warranties given by the employee in clause 4, and in the agreement in general, are breached, the employer can recover all defence costs, including legal fees,

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under sub-clause 4.7; however, this is not a repayment clause for the sums paid under the settlement agreement.

Clause 5Clause 5 provides for the statutory requirement that the settlement agreement satisfies the conditions regulating both settlement and compromise agreements in each of the applicable pieces of legislation. It is therefore essential that all applicable legislation is cited. In the event that this does not reflect the claims, they will not be settled.

Clause 6Clause 6 sets out the arrangements in respect of taxation of payments and benefits under the agreement. While the contractual payments and benefits will be taxed at source, the ex gratia payments and benefits will not. This clause provides for an indemnity to be given by the employee to pay any taxation arising from the payments or benefits as assessed by HMRC. In some negotiations an employees’ adviser may request that this clause is amended or removed, ideally the clause should remain although there is an option for the employee to be given reasonable opportunity to challenge the HMRC assessment of the taxable status of the payment.

Clause 7Clause 7 addresses company property. All company property should be specified in this clause; all hardware should be identified by make and model and any reference to specific documentation should be clearly set out. If no company property is to be returned, the clause can be removed

Clause 8Clause 8 addresses confidentiality after the termination of the employment relationship. This clause has options to ensure that any existing contractual confidentiality agreement or separate agreement will not be affected by the termination of employment.

Clause 9Clause 9 should not be removed from the settlement agreement. It serves to ensure that the terms of the settlement are not disclosed, other than in certain circumstances and to specific individuals. The clause places an equal duty on both employer and employee to maintain confidentiality surrounding the Agreement.

Clause 10Clause 10 is an optional clause which allows for the restating of existing post-termination restrictions.

Clause 11Clause 11 provides for the protection of the reputation and interests of both parties to the agreement.

Clause 12Clause 12 makes provision for an employment reference to be agreed. Clients should be cautioned in respect of the content of the reference they have a legal duty to provide

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accurate information. The provision of an inaccurate reference which results in losses to another may give rise to a claim of negligence.

Clause 13Clause 13 is only applicable to settlement agreements entered into in England or Wales. It permits third parties, such as associated companies, to enforce the agreement or to pursue a breach of the agreement.

Clause 14Clause 14 sets out the general terms and references in the agreement.

Clause 15Clause 15 should be amended to reflect the appropriate jurisdiction. This is a clause setting out general conditions and interpretation of the settlement agreement. Ensure that the terms tie in with the jurisdictions and legal references contained throughout the document

Clause 16Clause 16 details that this is the prevailing contract in the relationship. It is therefore necessary that the parties to the agreement testify to this by signing the completed clause. The clause and signatures should be on one uninterrupted page.

Schedule 1Schedule 1 should be completed by the employees’ adviser on letterhead from their organisation. It is a separate declaration from the Adviser to confirm that they are a ‘Relevant Independent Adviser’ and hold the required indemnity for providing the advice. If this is not provided on letterhead, the schedule should be requested again.

Schedule 2Schedule 2 is used to detail the agreed reference that will be provided to prospective employers.

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Settlement agreement template

DATED [insert date] DAY OF [insert month] 20[insert year]

[INSERT NAME OF EMPLOYER]

AND

[INSET NAME OF EMPLOYEE]

______________________________________________________________

REGULATED SETTLEMENT AGREEMENT(PURSUANT TO SECTION 203 OF THE

EMPLOYMENT RIGHTS ACT 1996)______________________________________________________________

DRAFT

WITHOUT PREJUDICE [AND SUBJECT TO CONTRACT – only add where agreement entered into in England or Wales]

[CONFIDENTIAL FOR THE PURPOSES OF S111A OF THE EMPLOYMENT RIGHTS ACT 1996]

THIS AGREEMENT is made the [insert date] day of [insert month] 20[insert year]

BETWEEN

(1) [Insert employer] being company number [insert company number] with registered office situated at [insert registered address] ("the Employer"); and

[Option for individual employer] [insert employer(s) name] trading as [insert business name] situated at [insert primary business address] (“the Employer”); and

(2) [Insert employee] of [insert employee’s address] ("the Employee")

Background

(A) The Employee commenced employment with the Employer on or about [insert date];

(B) The Employee has been employed by the Employer under the terms of a Contract of Employment dated [insert date] (“the Contract”) made between the Employer and Employee;

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(C) The Employee’s employment with the Employer terminated on [insert date] (“the Termination Date”) by way of [insert reason];

It is agreed as follows:

1. Termination

1.1 By this Agreement, the Employee accepts and confirms the termination of [his/her] employment with the Employer the same taking effect from the Termination Date.

1.2 The Employer [delete as appropriate – has paid/will pay] the Employee [his/her] normal salary [optional – and all other statutory and contractual benefits], including annual leave, which will have accrued up to and including the Termination Date subject to normal deductions under PAYE and national insurance contributions.

1.3 The Employee’s entitlement to all contractual benefits, including bonus payments, shall cease upon the Termination Date.

1.4 [Optional] Subject to the Employee satisfying the terms and conditions of this Agreement, the Employer will pay the Employee the sum of £[insert amount] [insert amount in words], which represents [delete as appropriate – months/weeks] payment in lieu of the Employee’s notice period, under deduction of income tax and national insurance contributions.

1.5 Subject to the Employee satisfying the terms and conditions of this Agreement, the Employer will without admission of liability pay to the Employee the sum of £[insert amount] [insert amount in words], by way of compensation for termination of employment [and/or loss of office] (“the Compensation Payment”). The Compensation Payment is a non-contractual payment made as compensation for the termination of the Employee’s employment [and/or loss of office].

[Select from the clauses below and delete as appropriate]

1.6 [Option 1: If total compensation is less than £30,000] The Compensation Payment will be made without deduction of tax and national insurance contributions in accordance with section 403 and Schedule 7 of the Income Tax (Earnings and Pensions) Act 2003.

[OR]

1.7 [Option 2: If total compensation is greater than £30,000] The first £30,000.00 (thirty thousand pounds) of the Compensation Payment will be made without deduction of tax and national insurance contributions in accordance with section 403 and Schedule 7 of the Income Tax (Earnings and Pensions) Act 2003. The Employer will deduct income tax and national insurance contributions at the appropriate rate from the balance of the Compensation Payment.

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1.8 The Employee acknowledges and agrees that any and all monies, loans or reimbursements whatsoever due and owing to the Employer shall be deducted from [his/her] final salary payment with any outstanding amount being deducted from the Compensation Payment. [Optional – Those deductions being set out in Schedule 3 to this Agreement]

1.9 The payments referred to within clause [insert clause], [insert clause] and [insert clause] will be paid directly into the nominated bank account of the Employee within 14 (fourteen) days from the date of the receipt of this Agreement duly executed by the Employee and [his/her] Relevant Independent Adviser in duplicate by the Employer (the “Payment Condition”).

1.10 [Optional] The Employer will reimburse the Employee for any expenses incurred in the normal course of [his/her] employment up to and including the Termination Date. The reimbursement of such expenses will be made in accordance with the Employer’s existing Expenses Policy and will be subject to the production of satisfactory evidence of expenditure.

1.11 The Employer will pay the Employee’s reasonable legal fees not exceeding £[insert amount] [insert amount in words], [deelte as appropriate – inclusive of/plus] VAT for advice upon the implications of signing this Agreement. Payment will be made by the Employer directly to the Employee’s legal Adviser subject to the Payment Condition having been satisfied and the presentation of a valid tax invoice which is addressed to the Employee yet marked payable by the Employer.

2 Agreement [only include clauses applicable to the particular dispute]

The Employee acknowledges and agrees that [s/he] could bring statutory or contractual claims, or institute proceedings or complaints before an employment tribunal or court in any jurisdiction against the Employer, any Associated Employer as defined by Section 231 of the Employment Rights Act, or any of its or their present or former officers, shareholders or employees arising out of or in connection with the Employee’s employment or its termination in respect of any of the following specific claims:

2.1 any claim for unfair and/or constructive dismissal pursuant to Part [insert part] of the Employment Rights Act 1996;

2.2 any claim for wrongful dismissal;

2.3 a claim for breach of contract;

2.4 any claim arising out of a contravention or an alleged contravention of Part II of the Employment Rights Act 1996 (protection against unlawful deduction from wages);

2.5 any claim for a statutory redundancy payment pursuant to Section 135 of the Employment Rights Act 1996;

2.6 any claim arising out of a breach of Part V of the Employment Rights Act 1996 (protection from suffering detriment in employment) where the Employee suffers

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any detriment due to [delete as appropriate – being a health and safety representative/exercising working time rights (such as refusing to forego holidays, or to sign an opt out)/being an employee representative/taking time off to study/making a protected disclosure/taking leave for domestic or family reasons/taking or applying for tax credits/applying for or undertaking flexible working/being a Trustee of occupational pension schemes/any complaint under Part V of the Employment Rights Act 1996 includes a claim under Sections 10-13 of the Employment Relations Act 1999 (the right to be accompanied at disciplinary and/or grievance hearings and related rights)];

2.7 any claim arising out of a breach of Part VI [and/or Part 6A] of the Employment Rights Act 1996 (time off work for [delete as appropriate – public duties/looking for work and making arrangements for training/ante-natal care/dependants/occupational pension trustees/employee representatives/study or training]);

2.8 any claim arising out of a breach of Part VII of the Employment Rights Act 1996 (suspension from work on medical/maternity grounds);

2.9 any claim arising under Sections 80, 80F or 80H of the Employment Rights Act 1996 (parental leave and flexible working).

2.10 any claim or complaint for payment in lieu of holidays under Regulation 30 of the Working Time Regulations 1998 and/or Section 48(1ZA) of the Employment Rights Act 1996.

2.11 any claim or complaint of direct or indirect discrimination, harassment or victimisation related to sex, marital or civil partnership status, pregnancy or maternity or gender reassignment under section 120 of the Equality Act 2010;

2.12 a claim or complaint arising under Article 157 of the Treaty on the Functioning of the European Union (formerly Article 119 of the Treaty of Rome);

2.13 any claim or complaint for equality of terms, under sections 120 and 127 of the Equality Act;

2.14 any claim or complaint of direct or indirect discrimination, harassment or victimisation related to race under section 120 of the Equality Act 2010;

2.15 any claim or complaint of direct or indirect discrimination, harassment or victimisation related to disability, discrimination arising from disability, or failure to make adjustments under section 120 of the Equality Act 2010;

2.16 any claim or complaint of direct or indirect discrimination, harassment or victimisation related to sexual orientation, under section 120 of the Equality Act 2010;

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2.17 any claim or complaint of direct or indirect discrimination, harassment or victimisation related to religion or belief, under section 120 of the Equality Act 2010;

2.18 any claim or complaint of direct or indirect discrimination, harassment or victimisation related to age, under section 120 of the Equality Act 2010;

2.19 a claim or complaint under Section 3 of the Employment Tribunals Act 1996.

2.20 any claim arising out of a contravention or alleged contravention of Section 168 (the right to time off for carrying out trade union duties); or Section 169 (the right to payment for time off under Section 168); or Section 170 (the right to time off for trade union activities); or paragraph 156 of Schedule A1; or Section 192 of the Trade Union and Labour Relations (Consolidation) Act 1992.

2.21 any claim under Sections 11, 18, 19D or 24 of the National Minimum Wage Act 1998.

2.22 any claim under Regulation 27 (the right to time off for information and consultation representatives), Regulation 28 (the right to be paid at the Employee’s normal rate of pay for time off) and Regulation 32 (the right to not suffer a detriment because of becoming or wishing to become an employee representative) of Part VIII of the Information and Consultation of Employees Regulations 2004.

2.23 any claim under Regulations 27 (the right to paid time off for members of European Works Councils) or Regulation 32 (protection for detriment for protected activities) of the Transnational Information and Consultation of Employees Regulations 1999.

2.24 any claim under Regulations 5, 7 and/or 8 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

2.25 any claim under Regulations 3, 6 and/or 7 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.

2.26 any claim or alleged claim under Section 8 (the right to an itemised pay statement), Section 28 (the right to a guarantee payment, or Section 92 (the right to a written statement of reasons for dismissal) of the Employment Rights Act 1996.

2.27 any claim under Paragraph 2 (the right to reasonable time off), or Paragraph 3 (the right to be paid remuneration for time off), or Paragraph 5 (protection against unfair dismissal), or Paragraph 7 (protection from suffering other detriment) of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006.

2.28 any claims in [delete as appropriate tort (English term)/delict (Scottish term)] that s/he has or may have now or in the future whether contemplated or not, whether statutory or otherwise, against the Employer arising out of or in connection with

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[his/her] employment or it’s termination with the Employer except as provided in clause 3.2.

2.29 any contractual claim under common law arising out of the termination of the Employee’s employment.

2.30 any claim under any provision of directly applicable European Law.

3 Settlement

3.1 The Compensation Payment is subject to the following Employee warranties and undertaking:

3.1.1 That the terms of this Agreement are in full and final settlement of all

claims contained within clause 2 herein; and

3.1.2 That the terms of this Agreement are in full and final settlement of any other claims whether under statute, at common law and whether under [delete as appropriate English/Scots] and/or European Community Law or otherwise which the Employee may have on or after the Termination Date, whether known or not, against the Employer or any Associated Employer, or their officers, shareholders and employees arising out of or in connection with [his/her] employment with the Employer or its termination whether such claims come under the jurisdiction of an employment tribunal or not;

3.1.3 To immediately withdraw any current claim before any tribunal or court, and that neither s/he nor [his/her] representative shall raise any future applications, claims or proceedings whatsoever against the Employer or any Associated Employer, or their officers, shareholders and employees arising out of or in connection with [his/her] employment with the Employer or its termination.

3.1.4 That at the time of executing this Agreement there are no actions of the Employee, [optional – other than those specifically referred to within this Agreement], which would amount to a repudiatory breach of any express or implied term of the Contract which would entitle the Employer to summarily dismiss the Employee.

3.2 For the avoidance of doubt this Agreement shall not affect the Employee’s rights in respect of personal or industrial injury or illness which has not arisen at the date of this Agreement, or which the Employee is unaware of at the date of this Agreement, or pension benefits accruing up to the Termination Date, or a breach of this Agreement by the Employer.

4 Acknowledgment of Advice

The Employee represents, undertakes and warrants that:

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4.1 [He/She] has received independent legal advice from the person identified within Schedule 1 hereto (“the Adviser”).

4.2 [His/Her] Adviser is a relevant independent adviser for the purposes of the Acts and Regulations referred to at clause 5 below.

4.3 [His/Her] Adviser has provided professional advice as to the terms and effect of this Agreement and in particular the Employee's ability to pursue [his/her] rights before an employment tribunal or court.

4.4 [His/Her] Adviser has advised that there is in force a contract of insurance, or an indemnity provided for members of a profession or professional body, covering the risk of claims by the Employee in respect of loss arising in respect of and as a consequence of the professional advice of the Adviser.

4.5 [He/She] has instructed the Adviser to advise as to whether [he/she] has or may have any claims, including statutory claims, against the Employer arising out of or in connection with [his/her] employment and/or its termination, and has provided all information which may be required to provide that advice.

4.6 The Adviser has advised [him/her] that upon the basis of the information available:

4.6.1 [his/her] only claims or complaints against the Employer, whether statutory or otherwise, are those listed in clauses 2 and 3 of this Agreement; and

4.6.2 that [he/she] has no other claim whatsoever against the Employer, whether statutory or otherwise.

4.7 The Employee acknowledges that the Employer is entering into this Agreement in specific reliance on the representations, warranties and undertakings in clauses 3 and 4 and that, without prejudice to any other remedy the Employer may have, in the event that the Employee issues a claim relating to [his/her] employment or its termination against the Employer or any Associated Employer or their directors, officers, agents or employees, whether in the Employment Tribunal, [delete as appropriate – the County Court, or the High Court (English courts)/the Sheriff Court or the Court of Session (Scottish courts)] or otherwise the Employee agrees that [he/she] will indemnify the Employer for any losses suffered as a result thereof including legal fees reasonably incurred by the Employer in relation to any claim so issued.

5 Compliance with Legislation

5.1 The Employer, the Employee and the Employee’s Adviser agree and acknowledge that the conditions regulating settlement agreements and compromise agreements under the following statutory provisions (as such legislation has been or is amended from time to time) have been satisfied by this Agreement:

Note

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Include only the appropriate legislation.

5.1.1 section 203(3) of the Employment Rights Act 1996;5.1.2 section 147 of the Equality Act 2010;5.1.3 regulation 35(3) of the Working Time Regulations 1998;5.1.4 section 288(2B) of the Trade Unions and Labour Relations (Consolidation)

Act 1992;5.1.5 section 49(4) of the National Minimum Wage Act 1998;5.1.6 regulation 41(4) of the Transnational Information and Consultation of

Employees Regulations 1999;5.1.7 regulation 40(4) of the Information and Consultation of Employees

Regulations 2004;5.1.8 regulation 9 of the Part Time Workers (Prevention of Less Favourable

Treatment) Regulations 2000;5.1.9 regulation 10 of the Fixed-Term Employees (Prevention of Less

Favourable Treatment) Regulations 2002;5.1.10 paragraph 13 of the Schedule of the Occupational and Personal Pension

Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006

6 Tax Indemnity

6.1 The Employer makes no warranty as to the taxable status of the payments made under this Agreement.

6.2 In the event that any payments, property and/or benefits made in accordance with this Agreement are assessed as taxable income, liable for national insurance contributions, or subject to interest and/or penalties (“Taxation”) the Employee agrees to pay such Taxation.

6.3 In the event that Her Majesty’s Revenue and Customs seek to recover the whole or part of the Taxation from the Employer, or any of Associated Employer, the Employee will indemnify and continue to indemnify the Employer and any Associated Employer fully in respect thereof.

6.4 The Employee agrees to pay the Employer the amount of any Taxation within 14 days of the Employer serving upon the Employee a statement prepared by the Employer’s accountants certifying both the amount to be paid in respect of the indemnity at clause 6.3 and that the Taxation falls due to be accounted for to a relevant taxing authority within 30 days of the date of the statement [Optional – provided that the Employer has given the Employee 14 days to contest any liability with Her Majesty’s Revenue and Customs before it has made the payment].

6.5 For the avoidance of doubt this indemnity shall not apply to any Taxation already deducted by the Employer from the gross amount of any of the payments and/or benefits made pursuant to this Agreement.

7 Return of Property

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7.1 [Optional – Company Property to be returned] The Employee undertakes and agrees to return to the Employer, or as otherwise directed, within 3 days of the date of the Employee signing this Agreement in good condition and order any and all property of the Employer in [his/her] possession or control including, but not limited to, [delete as appropriate – company car with vehicle registration/laptop/mobile phone/Blackberry/credit cards/fuel card] keys, security passes together with all original, copied and electronically stored books, documents, records or data whatsoever.

[Optional – Company Property has been returned] The Employee warrants and agrees that all property of the Employer formerly in [his/her] possession or control including, but not limited to, [delete as appropriate – company car with vehicle registration/laptop/mobile phone/Blackberry/credit cards/fuel card], keys, security passes together with all original, copied and electronically stored books, documents, records or data whatsoever, has been returned to the Employer in good condition and order.

8 Confidentiality

8.1 For the purpose of this clause “Confidential Information” shall be taken to mean information, regardless of the format or manner in which it is recorded or stored, which is not within the public domain and which relates to the business, products, finances, affairs, trade secrets, intellectual property, technical data, and know-how of the Employer its customers, clients or any business contacts whatsoever.

8.2 The Employee acknowledges and agrees:


8.2.1 [Option 1: Include if Confidentiality Provisions within Contract] That the confidentiality provisions contained within the Contract , being clause [insert clause], shall continue after the termination date notwithstanding the termination of the Employee’s employment with the Employer;

[OR]

8.2.2 [Option 2: Include if separate confidentiality agreement exists] That terms of the confidentiality agreement entered into between the parties and dated [insert date] shall continue after the termination date notwithstanding the termination of the Employee’s employment with the Employer;

8.2.3 Not to divulge any Confidential Information whatsoever to any person, company or organisation;

9 Non-Disclosure


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[Option 1: Where Employer is an individual or partnership]The parties will not at any time disclose to any person, company or organisation the fact, terms of and negotiations leading up to this Agreement. This provision does not preclude the parties from disclosing the fact and terms of this Agreement to their spouse or partner and professional advisers provided that in making the disclosure the parties shall require that such individuals do not disclose the fact, terms and circumstances of this Agreement.

[OR]

[Option 2: Where Employer is a Company]That parties will not at any time disclose to any person, company or organisation the fact, terms of and negotiations leading up to this Agreement. This provision does not preclude the Employee from disclosing the fact and terms of this Agreement to [his/her] spouse or partner and professional advisers, nor does it preclude the Employer from disclosing the fact and terms of this Agreement to its professional Advisers provided that in making the disclosure the parties shall require that such individuals do not disclose the fact, terms and circumstances of this Agreement.

10 Post-Termination Restrictions

[Optional – Include if post-termination restrictions contained within Contract] The Employee acknowledges and agrees that the post-termination restrictions contained within the Contract, being clause [insert clause], shall continue after the Termination Date.

11 Non-Disparagement

11.1 The Employee shall not make any statements, whether oral or written, which are critical, adverse, derogatory, or detrimental to the interests of the Employer, any Associated Employer, Director, employee, or [delete as appropriate – client/customer] of the Employer.

11.2 The Employer shall not make any statements, whether oral or written, which are critical, adverse, derogatory or detrimental to the interests of the Employee.

11.3 For the avoidance of doubt the obligations provided under this Clause 12 shall be continuing obligations and shall include any statements made in any electronic media or online forum.

[Optional] 12 References

The Employer agrees to respond to any written request for a reference by a prospective employer in a manner which is consistent with the reference annexed hereto as Schedule 2.

13 Third Party Rights

The Contracts (Rights of Third Parties) Act 1999 applies to this Agreement. The Employee’s obligations under this Agreement may be enforced by any Associated Employer and any of their present or past officers, or employees.

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NoteOnly required for agreement entered into being governed by English law.

14 General

A reference to a statutory or legislative provision includes any lawful amendment or re-enactment of it.

The headings in this Agreement are for convenience only and shall not affect its interpretation or construction.

Notwithstanding that this Agreement is marked [delete as appropriate – ‘Without Prejudice’ (Scotland)/‘Without Prejudice and Subject to Contract’ (England and Wales)/Confidential for the purposes of s111A of the Employment Rights Act 1996], it will become open, binding and enforceable on the date that it is signed by both parties.

Any Schedules annexed to this Agreement form part of the Agreement.

15 Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the law of [delete as appropriate – England and Wales/Scotland].

The parties submit to the exclusive jurisdiction of the [delete as appropriate – English/Scottish] Courts and tribunals with regard to any dispute or claim arising under this Agreement.

16 Entire Agreement

This Agreement records the whole agreement between the parties and supersedes all previous agreements, whether oral or in writing, relating to the Employee’s employment or its termination.

The parties acknowledge and agree that each clause of this Agreement is separate, severable, and reasonable. Should any clause or clauses be held to be unreasonable, but would be reasonable if part of the wording of a clause or clauses is deleted, then the provisions contained in each clause shall apply under deletion of the particular words, so as to make the clause or clauses effective.

Signed by the Employee

Signature:

Date:

[Optional: Where Employer is a Company]

Signed for on behalf of the Employer:

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Name of Authorised Signatory:

Signature:

Date:

[Optional: Where Employer is single person]

Signed by the Employer

Name of Employer:

Signature:

Date:

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Schedule 1

Solicitor’s Certificate I [insert name] c/- [insert name] confirm that I am a Solicitor [of the Senior Courts of England and Wales – only required in England and Wales] holding a current practising certificate and that there is in force a contract of insurance or an indemnity provided for members of a profession or professional body covering the risk of claims by the Employee in respect of loss from advising on this matter. I confirm that I am a Relevant Independent Adviser for the purposes of the legislation relating to statutory settlement agreements and compromise agreements, including Section 203 of the Employment Rights Act 1996. I can confirm that I have given independent legal advice to [insert name] of [insert name] as to the terms and effect of [him/her] signing this Agreement and in particular its effect on [his/her] ability to pursue [his/her] rights before an employment tribunal or court.

Signed:Solicitor

Date:

[OR]

Adviser’s CertificateI [insert name] c/- [insert name] confirm that I am a Relevant Independent Adviser in terms of being a relevant independent adviser for the purposes of the legislation relating to statutory settlement agreements and compromise agreements including Section 203 of the Employment Rights Act 1996, and that there is in force a contract of insurance or an indemnity provided for members of a profession or professional body covering the risk of claims by the Employee in respect of loss from advising on this matter. I can confirm that I have given independent legal advice to [insert name] of [insert name] as to the terms and effect of [him/her] signing this Agreement and in particular its effect on [his/her] ability to pursue [his/her] rights before an employment tribunal or court.

Signed:Relevant Independent Adviser

Date:

18


Schedule 2

Agreed Reference

19

saif.org.uk€¦ · Web viewThe termination date specified in section C should always precede the...

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Transcript of saif.org.uk€¦ · Web viewThe termination date specified in section C should always precede the...