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Settlement Agreement Essentials

24 October 2019

There are times when a without prejudice or protected conversation, (like the ones we have with employees when presenting a settlement agreement), can be raised in court, and can be used against you.

If anything said or done is improper or connected with improper behaviour, evidence of pre-termination negotiations can be raised at court if the tribunal considers just to do so.

So what amounts to improper behaviour?

The Acas Code on Settlement Agreements provides examples of improper behaviour although the list is not exhaustive:

  • All forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour.
  • Physical assault or the threat of physical assault and other criminal behaviour.
  • All forms of victimisation.
  • Discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership.
  • Putting undue pressure on a party. For instance:

o    not giving reasonable time for consideration of a settlement offer;

o    an employer saying before any form of disciplinary process has begun that if the offer is rejected then the employee will be dismissed; or

o    an employee threatening to undermine an organisation's public reputation if the organisation does not sign the agreement, unless the provisions of the Public Interest Disclosure Act 1998 apply.

The tribunal is required first to make a finding that something has been said or done which amounts to improper behaviour and, then, go on to consider to what extent it is just and equitable for the matter to be admissible. It may not be the case that improper behaviour would make the whole course of negotiations admissible in evidence.

 

 

 

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