The Government have said that later this summer (we are so glad that they are predicting we will have a summer) it will become lawful for a business to negotiate with an employee regarding the termination of that person's employment without the employee being able to use those negotiations in a claim in the Employment Tribunal.

ACAS has now concluded its thoughts and is shortly to issue a code and guidance on how, and how not to, enter into settlement discussions. This will allow pre-termination negotiations not to be admissible in ordinary unfair dismissal cases provided they do not have the "improper behaviour" label put on them. The draft code now says:

  • the initial settlement offer will not need to be in writing (although our view is that it is probably still wise to do so), however, the final offer/settlement will need to be in writing;
  • there is no right for the employees to be accompanied at the settlement meeting, although it is good practice for them to be allowed someone to be there;
  • the recommended minimum period for considering a settlement offer is now ten days (although the parties can agree to a different period if they wish);
  • independent advice must be obtained by the employee on the offer/settlement agreement;
  • there will be no standard template letters other than those used as examples in the guidance;
  • compromise agreements will now be re-named settlement agreements; and
  • ACAS will issue general guidance on the new regime - some of the code will say what is legally necessary and other elements what is just recommended.

ACAS has provided an example list of examples of improper behaviour, which if it happens will mean that the discussions can be raised in the Tribunal. These include:

  • all forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour;
  • physical assault (no surprise there) or the threat of physical assault and other criminal behaviour;
  • victimisation;
  • discrimination; and
  • undue pressure on an employee, such as:
    • not enough time to consider the offer;
    • stating that if the employee does not accept they will be dismissed anyway;
    • stopping "whistleblowing".

The employer can though say that there may be outcomes if settlement is not agreed, such as disciplinary action.

In summary, the new procedures to be introduced should hopefully help businesses deal with employees that they no longer wish to retain. With all these things, hopefully the devil will not be in the detail, and we just now await the final code from ACAS to check there are no pitfalls.

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