Ahead of the implementation of the new regime for settlement agreements, the Acas Code of Practice has been published in its final form. This is a statutory code of practice, not just guidance. That means that when considering matters such as procedure and fairness, a tribunal can take into account whether the provisions of the Code have been applied and adhered to. It is therefore essential reading for all involved in HR and employment law matters and is a commendably straightforward document. In its final form it is a bit more flexible than the original draft. In particular there is now no need for a written offer to start the process (although a lot of employers will have one prepared) and the standard letters are not part of the statutory Code. However, they are still part of the guidance provided. An important point is that it provides for employees to be accompanied at meetings – as a matter of good practice, not a statutory right. This is a sensible move. If a settlement offer is coming out of the blue, an employee will be “shell-shocked” and could very well not be taking in what is being said. If on the other hand the employee has seen the writing on the wall, he or she will be feeling anxious and defensive – and on this basis might well not be taking in what is being said. Another change is that the suggested minimum time to consider the offer has been increased from seven to ten days, which gives the employee a weekend to fret and/or fume, and a working week to get some informed advice.
The protection given to pre-termination settlement negotiations only applies “to the extent that the tribunal considers just” and will not be available to the employer if anything done or said in the negotiations is “improper”. The Code gives examples of improper behaviour, including:
- – Harassment, bullying or intimidation;
- – Discrimination on the ground of a protected characteristic;
- – Threats by the employee to undermine the employers’ reputation (unless this would be protected whistleblowing);
- – Making it clear that the employee will be sacked if they do not agree the terms put to them. In practice this is by far the most likely scenario.
It is worth bearing in mind that what might be regarded by an employer to be entirely fair and reasonable could very well be seen in a very different light by an aggrieved employee. It is highly likely that employees will allege that the employer is not entitled to protection because of its “appalling behaviour” or similar so that it will all come out before the tribunal anyway. Accordingly, employers would be well advised to do what they have done for years anyway and that is not to start such negotiations unless they are pretty confident that there will be a successful conclusion without the need for tribunal proceedings.