Q&As

A claimant issued a claim for detriment as a result of making protected disclosures. Claimant then proposed financial settlement of their claims and agreed termination of employment, and a settlement agreement was entered into, with an effective date of termination of November 2019. The claimant subsequently applied for three permanent posts in February and March 2020 within their former team and was not shortlisted. They have now submitted claims for constructive unfair dismissal, and detriment (not being shortlisted). Can the employer bring a contract counterclaim for the claimant’s breach of the settlement agreement, or should the employer argue that the claimant has waived their unfair dismissal claim and therefore only respond to the alleged detriment re shortlisting?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 23/09/2020

The following Employment Q&A Produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • A claimant issued a claim for detriment as a result of making protected disclosures. Claimant then proposed financial settlement of their claims and agreed termination of employment, and a settlement agreement was entered into, with an effective date of termination of November 2019. The claimant subsequently applied for three permanent posts in February and March 2020 within their former team and was not shortlisted. They have now submitted claims for constructive unfair dismissal, and detriment (not being shortlisted). Can the employer bring a contract counterclaim for the claimant’s breach of the settlement agreement, or should the employer argue that the claimant has waived their unfair dismissal claim and therefore only respond to the alleged detriment re shortlisting?

It is commonly the case that an employment dispute will lead to a compromise, embodied in a settlement agreement. The right to bring an employment tribunal claim, eg for unfair dismissal, is a statutory right, and there are strict requirements relating to the contracting out of such right and other rights which must be complied with for the settlement agreement to be binding. Section 203 of the Employment Rights Act 1996 (ERA 1996) requires a valid settlement agreement to be in writing, to relate to particular proceedings (including intimated proceedings), advice from a named relevant independent adviser who has a policy of insurance as to the terms and effect of the proposed agreement must be given, and the agreement must state that the condition

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