The Health Secretary Jeremy Hunt recently wrote to all NHS Trusts urging them NOT to use gagging clauses to stop staff raising concerns over patient care following a media storm over so called abuses of this type of legal settlement.
At the time I blogged that this is a non issue and it now seems I am right.
ACAS launched a public consultation on a draft settlement agreements Code of Practice on 12 February 2013. The consultation was seeking the public’s views on a new draft Code which is designed to support new legal provisions on the admissibility of settlement agreement discussions in unfair dismissal cases. It also sought answers to fifteen specific questions relating to the sort of issues the Code should cover. Well the consultation closed on 9 April and the number responding was minuscule: 17 individuals and 50 from organisations comprising:
- 14 employers
- 14 trade unions
- 18 legal bodies
- 4 others (charities, mediation bodies).
hardly a significant number of firms and individual responded!
The Government have already indicated that it is their intention to bring the new Code and the new provisions on settlement agreements into effect by the Summer of 2013. The draft code and comments can be read here
What are Settlement agreements?
Currently known as ‘compromise agreements‘, settlement agreements are known to and sued by employers as a legally binding contract which can be used to end an employment relationship [on agreed terms].
Once terms are agreed, an individual cannot make a claim to a court or employment tribunal on matters specifically covered in the agreement. In exchange, the employee is expected (but may not) receive some form of payment or a reference from the employer.
The Government announced that it would be taking steps to encourage the wider use of settlement agreements by employers in September 2012, including the introduction of the confidentiality provisions. The latter will prevent any offers or discussions about settlement agreements from being used as evidence in an unfair dismissal claim providing that certain criteria are met.
Once terms are agreed, an individual cannot make a claim to a court or employment tribunal on matters specifically covered in the agreement. In exchange, the employee will usually receive some form of payment or a reference from the employer. The Government announced that it would be taking steps to encourage the wider use of settlement agreements by employers in September 2012, including the introduction of the confidentiality provisions.
The confidentiality provisions will also not apply to grounds other than unfair dismissal, such as claims of discrimination, harassment, victimisation or claims relating to breach of contract and employees will not be prevented from bringing claims in relation to ‘automatically unfair’ dismissals, such as for whistleblowing, trade union membership or asserting a statutory right, by virtue of having entered into a settlement agreement.
Interestingly the “improper behaviour” by one of the parties may result in a tribunal overturning the confidentially rules thereby allowing some of the confidentiality evidence to admitted. The guidance provides a number of non-exhaustive examples of what could constitute improper behaviour by either an employer or employee. These include all forms of harassment, bullying and intimidation; physical assault or the physical assault; victimisation; discrimination; and putting undue pressure on a party, which can include not giving an employee sufficient time to consider an offer.