Employment Law

In the intricate world of UK employment law, a settlement agreement, also formally referred to as a compromise agreement, stands as a legally binding contract that typically comes into existence between an employer and an employee. This agreement serves as a blueprint, delineating the terms and conditions under which an employee consents to relinquish their right to pursue specific employment-related claims against their employer in exchange for certain benefits.

Critical elements of settlement agreements:

Understanding a Fair Settlement Agreement: A fair and equitable settlement agreement is one that delivers a just and acceptable resolution for both parties involved. It typically encompasses various components, including:

1. Fair Compensation: Often, this involves a lump-sum payment to the employee, which may encompass notice periods, redundancy pay, and other entitlements.
2. Reference: The agreement may specify the nature of the reference the employer will provide for the employee in future job applications.
3. Confidentiality Clause: Commonly, settlement agreements feature clauses mandating both parties to uphold the agreement and its terms in strict confidence.
4. Non-Disparagement Clause: This clause serves to prevent both parties from making disparaging or detrimental statements about one another.

To ensure both fairness and legality within a settlement agreement, it is advisable for both parties to seek legal counsel. This brings us to the following question:

Do Employers Bear The Cost Of Legal Settlement Agreements? Legally, employers are not obligated to cover the legal expenses of employees seeking advice concerning settlement agreements. Nonetheless, many employers opt to contribute to or fully cover these costs as part of the negotiation process. Securing legal advice is indispensable for employees to comprehend the implications of the agreement and safeguard their rights.

Do I Require a Solicitor for a Settlement Agreement? Indeed, it is imperative to engage an independent legal advisor, such as a solicitor, when entering into a settlement agreement. A solicitor specialising in employment law can furnish you with essential counsel regarding the fairness and favourability of the proposed terms. They can also assist in negotiating improved terms, if necessary.

What Occurs if I Decline a Settlement Offer? Should you decline a settlement offer, you retain your prerogative to pursue legal action against your employer. Rejecting an offer does not immediately imperil your employment, but it may lead to subsequent negotiations or potential legal proceedings. It is of paramount importance to meticulously evaluate the offer and consult with a legal expert prior to making a decision.

Is a Settlement Agreement a Prudent Choice? The wisdom of entering into a settlement agreement hinges on your unique circumstances. Such an agreement can proffer advantages such as a swift resolution, financial compensation, and the avoidance of protracted legal battles. Conversely, it entails relinquishing the right to bring certain claims before an employment tribunal. Before making a determination, it is crucial to confer with an experienced employment law solicitor who can furnish personalised counsel tailored to your situation.

In summation, settlement agreements wield substantial significance in the realm of UK employment law, offering a mechanism for employers and employees to amicably resolve disputes. If you are contemplating a settlement agreement, getting legal advice is paramount to guarantee that the terms are equitable and advantageous.

If you require expert guidance, you can reach out to our Employment Solicitor Matthew Brain here at Optimal HR to obtain professional assistance custom-tailored to your specific needs. We are committed to supporting you in addressing workplace issues, including unfair dismissal and discrimination.

Blog written by Mel Stead FCIPD, Managing Director of Optimal HR Services who has 30 years’ experience in HR and employment law matters.

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Care workers are being denied access to the National Minimum Wage for their hours spent asleep during an overnight shift.

In March, a court ruled in favour of learning disability charity Mencap, dismissing claims brought by two of its former employees they were entitled to the minimum wage while asleep, instead, favouring the employer’s defence to pay only the statutory amount during their hours awake.

The ruling brings a five-year battle between Mencap and Clare Tomlinson-Blake – later, joined by a second claimant, John Shannon – to a close, clearing the company of any rights to repay the former workers earnings missed during their tenure and setting a precedent to all UK-based care homes moving forward.

Care providers nationally are celebrating the result, which provides absolute clarity as to how their care workers are compensated, an area previously dowsed in uncertainty. It also secures the financial situation for many facilities; had the workers’ claims been successful, the estimated bill for care homes stood at £400 million, a figure Mencap suggested would have caused severe financial implications for larger organisations like theirs while bankrupting countless smaller ones.

It’s less celebratory for care workers such as Tomlinson-Blake, who feels others like her should be compensated fairly for overnight shifts, whether they’re awake or asleep, with staff available in emergencies and therefore ‘working’ to protect society’s most vulnerable.

It falls at a particularly difficult time for many within a sector already famed for its unattractive rates of pay, with care workers under increasing pressure during the Covid-19 pandemic, forced to work for longer hours in an environment where exposure to the virus has been much greater than it has elsewhere.

Before her original court-hearing in 2017 – when Tomlinson-Blake first raised a claim against Mencap – care workers were paid a flat rate of £35 for night-shifts. After that hearing, it was suggested workers be paid by the hour, and at the national minimum wage rate, in effect doubling their pay to around £70 per shift. Yet a ruling for employers to provide the pay gap in back payments for up to six years announced at the same hearing was later reversed, giving a green light to employers to revert to their original lesser flat rate of pay – something that looks unlikely to change in the wake of the latest ruling in March.

Others, however, are choosing to pay their staff at an increased rate regardless of the guidance and one they feel equates to the value each employee brings to their role. It’s a trend the Voluntary Organisations Disability Group (VODG) hopes will eventually extend wider, as they call on the government to establish a standard fair rate of pay for all overnight care workers, preventing further damage to the sector in the wake of the recent court ruling.

In need of some HR advice? Wherever you are in the UK, you can arrange a chat with one of our friendly professional HR advisors at any time.

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The UK government announced on the 11^th May that those who cannot work from home should start to return to work if their business has reopened.

Concerns are now being raised by employers on how to handle situations where employees are refusing to return from being furloughed or from being absent due to illness.

Under normal circumstances if an employee fails to attend work this could be grounds to follow the disciplinary process with a potential for dismissal. However, under  present circumstance’s employers need to be very careful about applying this approach.

From a legal perspective, an employee cannot be placed in a  detrimental position for refusing to return to the workplace where they have genuine  serious health and safety concerns.

So how do you deal with this as an employer?

It’s important to treat every concern seriously and ensure that all mitigating actions are reflective of everyone’s individual situation.  All employers need to be able to evidence that they have;;

• Implemented and communicated the governments guidelines to minimise the risk, including providing any protective equipment necessary to keep employees safe. This will be entirely dependent upon the role and the building they work within.  Communicating this to employees is critical to the success of supporting employees return to work.
• Considered the wellbeing of all employees. Employers may wish to consider holding a well-being interview prior to employees returning to check the physical and mental well-being of their employees.  Remember, lockdown and COVID-19 has impacted everyone in different ways and it’s important to understand how it has impacted each employee individually by giving them the opportunity to discuss their well-being and any concerns they have.
• Considered all flexible working options. Employers must remember that many people may still have caring commitments to children or other family members who are still shielding.

Once an employer has gathered all the relevant information they  can then make an informed decision as to whether the refusal is reasonable or not.

Consideration should also be given to issues raised by an employee relating to any serious health and safety concerns which may give them  whistleblowing’ protection.

If you are in need of any support or guidance on how to safely and effectively support employees returning to work, or if you would like support or training on conducting well-being interviews before deciding whether to bring employees back to work then call us on 01422 897152 or email enquiries@optimal-hr.co.uk