Worried about clauses in settlement agreement - what to do?

SChitmehard

GingerTim said:

SChitmehard said:

Marcon said:

SChitmehard said:

Undervalued said:

tizerbelle said:

Bog standard clauses.  Very easy to avoid, just don't break the terms of the agreement i.e. don't raise an employment tribunal claim against the company, don't talk about the agreement, don't go bitching about the employer on social media etc etc.  The employer can't just make up stuff to take you to court for breaching it, they would have to have evidence that you did and then they would have to win the court case to be able to enforce it.   

Is your friend not getting a solicitor to review the agreement for him?  You can ask the employer to pay towards the costs of this - they don't have to and they may only pay part of the cost but for the agreement to be valid, your friend does need to have independent legal advice.

Indeed.

As tizerbelle says, fairly standard clauses that you would find in the majority of settlement agreements.

Obviously if your "friend" is in a strong enough bargaining position they may be able to get some or all of the clauses amended or deleted before they sign. However that would be unusual. If the employer won't compromise then the options are to either accept or have their day in court! If they win in court / tribunal they won't be bound by any confidentiality agreements etc and can tell the whole world what happened (as long as it is true)!

For the agreement to be valid the "friend" must receive legal advice from either a solicitor or a specially trained trades union rep. It is normal (although not obligatory) for the employer to pay just enough for the solicitor to do the bear minimum the law requires. Further legal advice and negotiating would normally be at the employee's expense.

Undervalued said:

tizerbelle said:

Bog standard clauses.  Very easy to avoid, just don't break the terms of the agreement i.e. don't raise an employment tribunal claim against the company, don't talk about the agreement, don't go bitching about the employer on social media etc etc.  The employer can't just make up stuff to take you to court for breaching it, they would have to have evidence that you did and then they would have to win the court case to be able to enforce it.   

Is your friend not getting a solicitor to review the agreement for him?  You can ask the employer to pay towards the costs of this - they don't have to and they may only pay part of the cost but for the agreement to be valid, your friend does need to have independent legal advice.

Indeed.

As tizerbelle says, fairly standard clauses that you would find in the majority of settlement agreements.

Obviously if your "friend" is in a strong enough bargaining position they may be able to get some or all of the clauses amended or deleted before they sign. However that would be unusual. If the employer won't compromise then the options are to either accept or have their day in court! If they win in court / tribunal they won't be bound by any confidentiality agreements etc and can tell the whole world what happened (as long as it is true)!

For the agreement to be valid the "friend" must receive legal advice from either a solicitor or a specially trained trades union rep. It is normal (although not obligatory) for the employer to pay just enough for the solicitor to do the bear minimum the law requires. Further legal advice and negotiating would normally be at the employee's expense.

Employer will pay £2500 for legal advice but solicitor is useless and just keeps on saying looks OK even though there were a lot of terms that were totally one-sided which the employers solicitor agreed to take out. She's a NWNF solicitor that took on the case but did the minimum and seems just to to be in it to get her 35% ASAP for next to no work.

Why on earth use a NWNF solicitor if the employer is prepared to pay for decent advice on the settlement agreement? If you're really bothered by the clauses, pay for another solicitor to do the job on a proper footing - i.e. paid to do the job of reviewing the settlement agreement.

My friend hired a NWNF employment solicitor who took on the case as the solicitor saw that the potential outcome could be £50-100k (pretty complex and long running case - discrimination/pay) or maybe a settlement at £25k upwards so a nice little earner for her. She did next to no work, usually wouldn't answer his questions when he emails her about the case, in fact the case has now been going on for just under a year and they have not met up even ONCE and there's only been 2-3 phone calls between them in all that time, it's all via a seldom email. I think she mucked up his case more than helped to be honest!

So the same NWNF solicitor is still involved in the case and when she found out that the employer was likely to take it all the way to court, she negotiated a £8k settlement!! To top it off the employer can get the money back if they claim/show that the agreement has been breached and get my friend to pay all their legal costs/damages under the clauses above! 

If he fires his NWNF solicitor he will have to pay her for the (next to no) work she has done so far (approx £2k). She hasn't given him any advice on what the agreement means or explained it in any way, she just says it is OK to sign even the first draft which was total nonsense. She is just interested in getting her cut ASAP, it'll be my friend who will be stuck with the agreement and the consequences. Seems like he's been done up like a kipper.. 

If a NWNF solicitor isn't, in your view, putting in the effort for the reward of a percentage of a supposedly high value case of undeniable merit, why do you think that might be? Perhaps after working on the case she has decided that this is the best that could be achieved?

If you think different then alternative legal representation will be required, though you may find their view to be similarly disappointing to you. 

Becasue the employer is multi-million company and it's (long running) discrimination case which she valued at £70k in the schedule of loss so she was probably hoping for a quick £20k-£30k settlement so a nice £7k-£10k chunk for her for next to no work. Like I said she has not met him in person once and they have had 2-3 phone calls between them in 9 months! 

You know solicitors are pretty low paid, around £30k/year, so I think she's doing this on the side and if she can get 2-3 cases like this then that's a nice extra £15k-£30k bonus every year for very little work!

SChitmehard

Undervalued said:

Marcon said:

JCS1 said:

SChitmehard said:

Jaybee_16 said:

Does your friend have an agreed reference as part of the settlement agreement?

They at first refused to give one at all.  But in his type of job he NEEDS a personal reference about his work ethic/standard etc. and they have refused point blank to provide this. Now, after a lot of negotiation they said they will only give start/end date and job title which is not good really but better than nothing.

There is no legal right to a detailed reference

There can be in certain circumstances e.g. a regulatory reference.

If this were one of the few occupations where a particular form of reference was legally required then the employer wouldn't be able to rely on a clause in a settlement agreement to get out of providing one.

No right to a reference at all except in a few cases. In most jobs it's purely goodwill.

But if you were to have a basic reference clause in your settlement agreement. Who would you ask to do the reference for you as part of the settlement agreement? The ex-manager that you have put in a ET case against or from HR? If from HR will it not look weird to the employer as usually ex-manager does the reference?

Marcon

SChitmehard said:

Undervalued said:

Marcon said:

JCS1 said:

SChitmehard said:

Jaybee_16 said:

Does your friend have an agreed reference as part of the settlement agreement?

They at first refused to give one at all.  But in his type of job he NEEDS a personal reference about his work ethic/standard etc. and they have refused point blank to provide this. Now, after a lot of negotiation they said they will only give start/end date and job title which is not good really but better than nothing.

There is no legal right to a detailed reference

There can be in certain circumstances e.g. a regulatory reference.

If this were one of the few occupations where a particular form of reference was legally required then the employer wouldn't be able to rely on a clause in a settlement agreement to get out of providing one.

No right to a reference at all except in a few cases. In most jobs it's purely goodwill.

But if you were to have a basic reference clause in your settlement agreement. Who would you ask to do the reference for you as part of the settlement agreement? The ex-manager that you have put in a ET case against or from HR? If from HR will it not look weird to the employer as usually ex-manager does the reference?

The reference and who will provide it will be agreed as part of your settlement agreement. Nothing weird about HR doing it; that's what most potential employers would expect, rather than a former manager (who might well have moved on by then).

tightauldgit

Just thought I'd address the OP - because it doesn't appear to say what your hypothetical suggests. The whole clause one relates to the case where your friend starts an action against the employer after the settlement. 

Defending yourself against a claim from the employer does not trigger clause 1. They'd still have to demonstrate that your friend indeed did break the agreement.

 

BrassicWoman

If you don't like it and fancy your chances in court better, then don't sign it. Seems simple to me.