Settlement agreement template

Dated

[date]

Settlement Agreement

between

[Company name]

and

[Employee name]

 

THIS AGREEMENT is dated [date]

Parties

1. [Company name] Limited incorporated and registered in England and Wales with company number [Company registration number] whose registered office is at [Registered Company address] (Company).

2. [Employee name] of [Employee address] (Employee).

Background

The Employee is employed by the Company from [start date], most recently as [job title] under a contract dated [contract date].

1. The Employee's employment with the Company shall terminate on [date].

2. The parties have entered into this agreement to record and implement the terms on which they have agreed to settle any claims that the Employee has or may have in connection with [his | her] employment or its termination or otherwise against the Company (as defined below) or its officers or employees whether or not those claims are, or could be, in the contemplation of the parties at the time of signing this agreement, and including, in particular, the statutory complaints that the Employee raises in this agreement.

3. The parties intend this agreement to be an effective waiver of any such claims and to satisfy the conditions relating to settlement agreements in the relevant legislation

Agreed terms

1. Interpretation

The following definitions and rules of interpretation apply in this agreement.

1.1 Definitions:

Adviser: [ ] of [ ] .

Board: the board of directors of the Company (including any committee of the board duly appointed by it).

Confidential Information: information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, products, affairs and finances of the Company for the time being confidential to the Company and trade secrets including, without limitation, technical data and know-how relating to the business of the Company or any of its suppliers, clients, customers, agents, distributors, shareholders or management, including (but not limited to) information that the Employee created, developed, received or obtained in connection with [his | her] employment, whether or not such information (if in anything other than oral form) is marked confidential.

Copies: copies or records of any Confidential Information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) including, without limitation, extracts, analysis, studies, plans, compilations or any other way of representing or recording and recalling information which contains, reflects or is derived or generated from Confidential Information.

Group Company: the Company, its subsidiaries or holding companies from time to time and any subsidiary of any holding company from time to time.

1.2 The headings in this agreement are inserted for convenience only and shall not affect its construction.

1.3 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 The Schedules shall form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.

2. Arrangements on termination

2.1 The Employee's employment with the Company shall terminate on [termination date] (Termination Date).

2.2 The Company shall pay the Employee their salary up to the Termination Date in the usual way. The Company shall deduct from the final salary payment any outstanding sums due from the Employee to the Company.

2.3 The Company shall continue to provide benefits to the Employee in the usual way up to the Termination Date.

2.4 The Company shall make a payment to the Employee in respect of [no. of hours/days] [hours | days] outstanding holiday, up to and including the Termination Date.

2.5 The payments and benefits in this clause shall be subject to the income tax and National Insurance contributions that the Company is obliged by law to pay or deduct.

2.6 The Employee shall submit on or before the Termination Date [his | her] expenses claims in the usual way and the Company shall reimburse the Employee for any expenses properly incurred before the Termination Date in the usual way.

3. Termination payment

3.1 Subject to and conditional on the Employee complying with the terms of this agreement, the Company shall within 28 days of the Termination Date or receipt by the Company of a copy of this agreement signed by the Employee and a letter from the Adviser in the form as set out in Schedule 3, whichever is later, pay to the Employee by way of compensation for the termination of [his | her] employment £[amount] (Termination Payment).

3.2 The Company and the Employee believe that the Termination Payment will be tax free. The Employee shall be responsible for any further tax and employee's National Insurance contributions due in respect of the Termination Payment and shall indemnify the Company in respect of such liability in accordance with clause 7.1.

[4. Pension

The Company shall notify the trustees or administrators of the [pension scheme organisation] (Pension Scheme) that the Employee's employment will terminate and request written confirmation of the Employee's accrued entitlement under the Pension Scheme and request that the options available for dealing with [his | her] entitlement are sent to the Employee.]

5. Legal fees

The Company shall pay the reasonable legal fees (up to a maximum of £[amount] plus VAT) incurred by the Employee in obtaining advice on the termination of [his | her] employment and the terms of this agreement, such fees to be payable to the Adviser on production of an invoice addressed to the Employee but marked as payable by the Company.

6. Waiver of claims

6.1 The Employee agrees that the terms of this agreement are offered by the Company without any admission of liability on the part of the Company and are in full and final settlement of all and any claims or rights of action that the Employee has or may have against the Company or its officers or employees whether arising out of [his | her] employment with the Company or its termination or from events occurring after this agreement has been entered into, whether under common law, contract, statute or otherwise, whether such claims are, or could be, known to the parties or in their contemplation at the date of this agreement in any jurisdiction and including, but not limited to, the claims specified in Schedule 1 (each of which is waived by this clause).

6.2 The waiver in clause 6.1 shall not apply to the following:

1. any claims by the Employee to enforce this agreement;

2. claims in respect of personal injury of which the Employee is not aware and could not reasonably be expected to be aware at the date of this agreement (other than claims under discrimination legislation); and OR

3. [any claims in relation to accrued entitlements under the [pension scheme name] pension scheme.]

6.3 The Employee warrants that:

1. before entering into this agreement [he | she] received independent advice from the Adviser as to the terms and effect of this agreement and, in particular, on its effect on [his | her] ability to pursue any complaint before an employment tribunal or other court;

2. the Adviser has confirmed to the Employee that they are a solicitor holding a current practising certificate and that there is in force a policy of insurance covering the risk of a claim by the Employee in respect of any loss arising in consequence of their advice;

3. the Adviser shall sign and deliver to the Company a letter in the form attached as Schedule 3 to this agreement;

4. before receiving the advice the Employee disclosed to the Adviser all facts and circumstances that may give rise to a claim by the Employee against the Company or its officers or employees;

5. the only claims that the Employee has or may have against the Company or its officers or employees (whether at the time of entering into this agreement or in the future) relating to [his | her] employment with the Company or its termination are specified in clause 6.1; and

6. the Employee is not aware of any facts or circumstances that may give rise to any claim against the Company or its officers or employees other than those claims specified in clause 6.1.

The Employee acknowledges that the Company acted in reliance on these warranties when entering into this agreement.

6.4 The Employee acknowledges that the conditions relating to settlement agreements under section 147(3) of the Equality Act 2010, section 77(4A) of the Sex Discrimination Act 1975 (in relation to claims under that Act and the Equal Pay Act 1970), section 72(4A) of the Race Relations Act 1976, paragraph 2 of Schedule 3A to the Disability Discrimination Act 1995, paragraph 2(2) of Schedule 4 to the Employment Equality (Sexual Orientation) Regulations 2003, paragraph 2(2) of Schedule 4 to the Employment Equality (Religion or Belief) Regulations 2003, paragraph 2(2) of Schedule 5 to the Employment Equality (Age) Regulations 2006, section 288(2B) of the Trade Union and Labour Relations (Consolidation) Act 1992, section 203(3) of the Employment Rights Act 1996, regulation 35(3) of the Working Time Regulations 1998, section 49(4) of the National Minimum Wage Act 1998, regulation 41(4) of the Transnational Information and Consultation etc. Regulations 1999, regulation 9 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, regulation 10 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, regulation 40(4) of the Information and Consultation of Employees Regulations 2004, paragraph 13 of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006, regulation 62 of the Companies (Cross Border Mergers) Regulations 2007 and section 58 of the Pensions Act 2008 have been satisfied.

6.5 The waiver in clause 6.1 shall have effect irrespective of whether or not, at the date of this agreement, the Employee is or could be aware of such claims or have such claims in [his | her] express contemplation (including such claims of which the Employee becomes aware after the date of this agreement in whole or in part as a result of new legislation or the development of common law or equity).

6.6 The Employee agrees that, except for the payments and benefits provided for in this agreement, and subject to the waiver in clause 6.1, [he | she] shall not be eligible for any further payment from the Company relating to [his | her] employment or its termination and without limitation to the generality of the foregoing, [he | she] expressly waives any right or claim that [he | she] has or may have to payment of bonuses, any benefit or award programme, under any share plan operated by the Company or any stand-alone share incentive arrangement, or to any other benefit, payment or award [he | she] may have received had [his | her] employment not terminated.

7. Employee indemnities

7.1 The Employee shall indemnify the Company on a continuing basis in respect of any income tax or National Insurance contributions (save for employers' National Insurance contributions) due in respect of the payments and benefits in clause 3.1 (and any related interest, penalties, costs and expenses). The Company shall give the Employee reasonable notice of any demand for tax which may lead to liabilities on the Employee under this indemnity and shall provide [him | her] with reasonable access to any documentation [he | she] may reasonably require to dispute such a claim (provided that nothing in this clause shall prevent the Company from complying with its legal obligations with regard to HM Revenue and Customs or other competent body).

7.2 If the Employee breaches any material provision of this agreement or pursues a claim against the Company arising out of [his | her] employment or its termination other than those excluded under clause 6, [he | she] agrees to indemnify the Company for any losses suffered as a result thereof, including all reasonable legal and professional fees incurred.

8. Company property and information

8.1 The Employee shall, before the Termination Date, return to [name]:

1. all Confidential Information and Copies;

2. all property belonging to the Company in satisfactory condition including (but not limited to) any car (together with the keys and all documentation relating to the car), fuel card, company credit card, keys, security pass, identity badge, mobile telephone, pager, lap-top computer or fax machine; and

3. all documents and copies (whether written, printed, electronic, recorded or otherwise and wherever located) made, compiled or acquired by [him | her] during [his | her] employment with the Company or relating to the business or affairs of the Company or its business contacts, in the Employee's possession or under [his | her] control.

8.2 The Employee shall, as at the date of this agreement, warrants that [he | she] has erased irretrievably any information relating to the business or affairs of the Company or its business contacts from computer and communications systems and devices owned or used by [him | her] outside the premises of the Company, including such systems and data storage services provided by third parties (to the extent technically practicable).

8.3 The Employee shall, if requested to do so by the Company, provide a signed statement that [he | she] has complied fully with [his | her] obligations under clause 8.1 and clause 8.2 and shall provide it with such reasonable evidence of compliance as may be requested.

9. Employee warranties and acknowledgments

9.1 As at the date of this agreement, the Employee warrants and represents to the Company that there are no circumstances (other than the disciplinary allegations already asserted by the Company) of which the Employee is aware or of which the Employee ought reasonably to be aware that would amount to a repudiatory breach by the Employee of any express or implied term of the Employee's contract of employment that would entitle (or would have entitled) the Company to terminate the Employee's employment without notice or payment in lieu of notice and any payment to the Employee pursuant to clause 3 is conditional on this being so.

9.2 As at the date of this agreement, the Employee warrants and represents to the Company that [he | she] has not received or accepted any offer which will provide [him | her] with any form of income or benefits at any time after the Termination Date and any payment to the Employee pursuant to clause 3 is conditional on this being so.

9.3 The Employee agrees to make [him | her]self available to, and to cooperate with, the Company or its advisers in any internal investigation or administrative, regulatory, judicial or quasi-judicial proceedings. The Employee acknowledges that this could involve, but is not limited to, responding to or defending any regulatory or legal process, providing information in relation to any such process, preparing witness statements and giving evidence in person on behalf of the Company. The Company shall reimburse any reasonable expenses incurred by the Employee as a consequence of complying with [his | her] obligations under this clause, provided that such expenses are approved in advance by the Company.

9.4 The Employee acknowledges that [he | she] is not entitled to any compensation for the loss of any rights or benefits under any bonus plan, benefit or award programme, share plan operated by the Company or any stand-alone share incentive arrangement, or for loss of any other benefit, payment or award [he | she] may have received had [his | her] employment not terminated other than the payments and benefits provided for in this agreement.

10. Reference

On receipt of a written request from a potential employer, the Company shall provide a reference in the form set out in Schedule 1 to this agreement and any oral reference provided will be on no less favourable terms. If the Company obtains information after the date of this agreement which would have affected its decision to provide a reference in the form in Schedule 1, it shall inform the Employee and may decline to give a reference.

11. Confidentiality and announcements

11.1 The Employee acknowledges that, as a result of [his | her] employment as [job title], [he | she] has had access to Confidential Information. Without prejudice to [his | her] common law duties, the Employee shall not (except as authorised or required by law or as authorised by the Company) at any time after the Termination Date:

1. use any Confidential Information; or

2. make or use any Copies; or

3. disclose any Confidential Information to any person, company or other organisation whatsoever.

11.2 The restrictions in clause 11.1 do not apply to any Confidential Information which is in or comes into the public domain other than through the Employee's unauthorised disclosure.

11.3 The Employee and the Company confirm that they have kept and agree to keep the existence and terms of this agreement and the circumstances concerning the termination of the Employee's employment confidential, except where such disclosure is to HM Revenue & Customs, required by law or (where necessary or appropriate) to:

1. the Employee's spouse, civil partner or partner, immediate family or legal or professional advisers, provided that they agree to keep the information confidential; or

2. the Employee's insurer for the purposes of processing a claim for loss of employment; or

3. the Employee's recruitment consultant or prospective employer to the extent necessary to discuss [his | her] employment history.

11.4 The Company pay also disclose the existence and terms of this agreement to the Company's officers, employees or legal or professional advisers, provided that they agree to keep the information confidential.

11.5 The Employee shall not make any adverse or derogatory comment about the Company, its directors or employees and the Company shall use reasonable endeavours to ensure that its employees and officers shall not make any adverse or derogatory comment about the Employee. The Employee shall not do anything which shall, or may, bring the Company, its directors or employees into disrepute and the Company shall use reasonable endeavours to ensure that its employees and officers shall not do anything that shall, or may, bring the Employee into disrepute.

11.6 Nothing in this clause 11 shall prevent the Employee from making a protected disclosure under section 43A of the Employment Rights Act 1996 and nothing in this clause 11 shall prevent the Company from making such disclosure as it is required by law to make.

11.7 The Company shall pay £50 to the Employee as consideration for [his | her] entering into the restrictions in this clause 11, such sum to be paid within 14 days of the Termination Date or receipt by the Company of a copy of this agreement signed by the Employee and receipt by the Company of a letter from the Adviser as set out in Schedule 3, whichever is later. The Company shall deduct income tax and National Insurance contributions from this sum.

12. Entire agreement

12.1 Each party on behalf of itself acknowledges and agrees with the other party that:

1. this agreement constitutes the entire agreement between the parties and supersedes and extinguishes all agreements, promises, assurances, warranties, representations and understandings between them whether written or oral, relating to its subject matter;

2. in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement; and

3. it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

12.2 Nothing in this agreement shall, however, operate to limit or exclude any liability for fraud.

13. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14. Third party rights

Except as expressly provided elsewhere in this agreement, no person other than the Employee and the Company shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

15. Governing law

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

16. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute, claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

17. Subject to contract and without prejudice

This agreement shall be deemed to be without prejudice and subject to contract until such time as it is signed by both parties and dated, when it shall be treated as an open document evidencing a binding agreement.

18. Counterparts

This agreement may be executed and delivered in any number of counterparts, each of which, when executed, shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

This agreement has been entered into on the date stated at the beginning of it.

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Reference

[ON HEADED NOTEPAPER OF EMPLOYER]

To whom it may concern

[DATE]

Private and confidential

[Employee name] was employed by [Company name] from [start date] to [end date] as [job title].

[His | Her] role involved [describe role in 2 or 3 sentences], and we believe [him | her] to have generally been an honest and capable employee during [his | her] time here.

While the information provided is, to the best of [Company name]'s knowledge, completely accurate, [Company name] cannot accept any liability for decisions based on it.

Yours sincerely,

 

[Sender name]

[Job title]

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Claims

1. Claims:

1. for breach of contract or wrongful dismissal;

2. for unfair dismissal, under section 111 of the Employment Rights Act 1996;

3. in relation to the right to a written statement of reasons for dismissal, under section 93 of the Employment Rights Act 1996;

4. for a statutory redundancy payment, under section 163 of the Employment Rights Act 1996;

5. in relation to an unlawful deduction from wages or unlawful payment, under section 23 of the Employment Rights Act 1996;

6. for unlawful detriment, under section 48 of the Employment Rights Act 1996 or section 56 of the Pensions Act 2008;

7. in relation to written employment particulars and itemised pay statements, under section 11 of the Employment Rights Act 1996;

8. in relation to guarantee payments, under section 34 of the Employment Rights Act 1996;

9. in relation to suspension from work, under section 70 of the Employment Rights Act 1996;

10. in relation to parental leave, under section 80 of the Employment Rights Act 1996;

11. in relation to a request for flexible working, under section 80H of the Employment Rights Act 1996;

12. in relation to time off work, under sections 51, 54, 57, 57B, 57ZC, 57ZF, 57ZH, 57ZM, 57ZQ, 60, 63 and 63C of the Employment Rights Act 1996;

13. in relation to working time or holiday pay, under regulation 30 of the Working Time Regulations 1998;

14. in relation to the national minimum wage, under sections 11, 18, 19D and 24 of the National Minimum Wage Act 1998;

15. for equal pay or equality of terms under sections 120 and 127 of the Equality Act 2010 [and/or section 2 of the Equal Pay Act 1970;

16. for pregnancy or maternity discrimination, 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 [and/or direct or indirect discrimination, harassment or victimisation related to sex, marital or civil partnership status, gender reassignment, pregnancy or maternity under section 63 of the Sex Discrimination Act 1975;

17. for direct or indirect discrimination, harassment or victimisation related to race under section 120 of the Equality Act 2010 [and/or direct or indirect discrimination, harassment or victimisation related to race, colour, nationality or ethnic or national origin, under section 54 of the Race Relations Act 1976;

18. for 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 and/or direct discrimination, harassment or victimisation related to disability, disability-related discrimination or failure to make adjustments under section 17A of the Disability Discrimination Act 1995;

19. for direct or indirect discrimination, harassment or victimisation related to religion or belief under section 120 of the Equality Act 2010 [and/or under regulation 28 of the Employment Equality (Religion or Belief) Regulations 2003;

20. for direct or indirect discrimination, harassment or victimisation related to sexual orientation, under section 120 of the Equality Act 2010 and/or under regulation 28 of the Employment Equality (Sexual Orientation) Regulations 2003;

21. for direct or indirect discrimination, harassment or victimisation related to age, under section 120 of the Equality Act 2010 and/or under regulation 36 of the Employment Equality (Age) Regulations 2006;

22. for less favourable treatment on the grounds of part-time status, under regulation 8 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000;

23. for less favourable treatment on the grounds of fixed-term status, under regulation 7 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002;

24. under regulations 27 and 32 of the Transnational Information and Consultation of Employees Regulations 1999;

25. under regulations 29 and 33 of the Information and Consultation of Employees Regulations 2004;

26. under regulations 45 and 51 of the Companies (Cross-Border Mergers) Regulations 2007;

27. under paragraphs 4 and 8 of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006;

28. under sections 68A, 87, 137, 145A, 145B, 146, 168, 168A, 169, 170, 174 and 192 of the Trade Union and Labour Relations (Consolidation) Act 1992;

29. in relation to the obligations to elect appropriate representatives or any entitlement to compensation, under the Transfer of Undertakings (Protection of Employment) Regulations 2006;

30. [in relation to the right to be accompanied under section 11 of the Employment Relations Act 1999;]

31. in relation to refusal of employment, refusal of employment agency services and detriment under regulations 5, 6 and 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010;

32. in relation to the right to request time off for study or training under section 63I of the Employment Rights Act 1996; and<

33. in relation to the right to equal treatment, access to collective facilities and amenities, access to employment vacancies and the right not to be subjected to a detriment under regulations 5, 12, 13 and 17(2) of the Agency Workers Regulations 2010.

34. in relation to personal injury, of which the Employee is or ought reasonably to be aware at the date of this agreement;

35. for harassment under the Protection from Harassment Act 1997;

36. for failure to comply with obligations under the Human Rights Act 1998;

37. for failure to comply with obligations under the Data Protection Act 1998;

38. arising as a consequence of the United Kingdom's membership of the European Union; and<

39. in relation to the right not to be subjected to a detriment under regulation 3 of the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015.

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Schedule 3   Adviser's certificate

[ON HEADED NOTEPAPER OF ADVISER]

For the attention of [DETAILS]

[DATE]

Dear Sirs,

I am writing in connection with the agreement between my client, [NAME], and [NAME OF COMPANY] (Company) [of today's date OR dated [DATE]] (Agreement) [and the reaffirmation letter signed by those parties dated [DATE] (Reaffirmation Letter)] to confirm that:

1. I, [NAME] of [FIRM], whose address is [ADDRESS], am [a Solicitor of the Senior Courts of England and Wales who holds a current practising certificate OR AMEND AS APPLICABLE].

2. I have given [NAME] legal advice on the terms and effect of the Agreement [and the Reaffirmation Letter] and, in particular, [its OR their] effect on [his | her] ability to pursue the claims specified in Schedule 1 of the Agreement.

3. I gave the advice to [NAME] as a relevant independent adviser within the meaning of the above acts and regulations referred to at clause 6.4.

4. There is now in force (and was in force at the time I gave the advice referred to above) a policy of insurance or an indemnity provided for members of a profession or professional body covering the risk of claim by [NAME] in respect of loss arising in consequence of the advice I have given [him | her].

Yours faithfully,

 

[NAME OF ADVISER]

[DATE]

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Signed by [name] for and on behalf of [Company name]

....................................................

[job title]

 

Signed [employee name]

....................................................