The distinction between a service occupancy (or service licence) and a service tenancy is important because: • if the employee occupies premises in connection with their employment as a licensee only, the licensor’s right to terminate the licence will arise when the employment ends • if the employee occupies the premises as a tenant, the landlord’s right to terminate will be regulated by the Housing Act 1988 For further information, see: our Practice Note: Service occupancy or tenancy?. You may also find useful: • Employees: Hill

We assume the contract in question is an off-premises business to consumer contract for the supply of services, with both contracting parties based in the UK. Set-off comes into consideration where parties have financial liabilities to one another. A right to set-off allows parties to deduct one party’s liability from the other leaving an outstanding balance to

Can a settlement agreement include a provision allowing the employer to withhold part of the termination payment until after any limitation period of a possible employment tribunal claim has passed? The employer may wish to pay the compensation payment in instalments (also known as staged payments), eg where it is concerned that the employee may seek to bring statutory claims despite the terms of the settlement agreement. Where all or a substantial proportion of the compensation payment is withheld until after the time limit for the employee

For information generally on the situation where an employer enters into a settlement agreement before termination that provides for the employee to be placed on garden leave during their notice period, see Practice Note: Settlement agreements in employment—practical and tax issues—Garden leave and reaffirmation (two-stage settlement). An employee whose employment is terminated by reason of redundancy will be entitled to receive their contractual notice entitlement (or their statutory entitlement, if longer) and a statutory redundancy payment calculated on the basis of their age, length of service and gross weekly pay (capped at the rate of £538 per week from 6 April 2020). See Practice Notes: • Entitlement to statutory redundancy payment • Contractual notice • Statutory minimum notice For information on the Coronavirus Job Retention Scheme (CJRS) generally, see Practice Notes: • Coronavirus

An individual making a data subject access request (DSAR) to a data controller is entitled to obtain from the data controller: • confirmation as to whether or not personal data concerning them is being processed, and if so • access to the personal data (ie a copy), and • the following information: ◦ the purposes of the processing ◦ the categories of personal data concerned ◦ the recipients or categories of recipient to whom the personal data has been or will be disclosed, in particular recipients in third countries or international organisations ◦ where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period ◦ the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing

Can a settlement agreement provide that an employee will withdraw a DSAR? At first glance, it may seem possible for a settlement agreement to provide that the employee gives up (waives) their right of access under Regulation (EU) 2016/679, the General Data Protection Regulation (GDPR) and/or Data Protection Act 2018 (DPA 2018), since there is no restriction in DPA 2018 on the data subject agreeing, by way of a settlement agreement or other contract, to ‘contract out’ of their right to make a DSAR under the GDPR or DPA 2018. Where there is a contracting-out mechanism (eg section 203 of the Employment Rights Act 1996 (ERA 1996)), it will provide that: • any contracting out of the right to bring claims is generally void (see, for example, ERA 1996, s 203(1)),

For information on the Coronavirus Job Retention Scheme (CJRS) generally, see Practice Notes: Coronavirus Job Retention Scheme (extended version 1 July to 31 October 2020) [Archived] and Coronavirus Job Retention Scheme (original version to 30 June 2020) [Archived]. The statutory basis of the CJRS is set out in a number of Treasury Directions. Treasury Direction No 1 and Treasury Direction No 2 state that the purpose of CJRS is to provide for payments to be made to employers on a claim made in respect of them incurring costs of employment in respect

kThere are a number of conditions that must be met in order for a settlement agreement between an employer and an employee to provide an effective exception to the contracting out provisions and have the effect of settling statutory claims (see eg section 203 of the Employment Rights Act 1996). However, there is nothing in the legislation to preclude the parties dealing with other the terms of settlement they have agreed in the settlement agreement. For further information, see Practice Notes: • Settlement agreements in employment—legal requirements • Settlement agreements in employment—practical and tax issues, in particular section: Company property The distinction between a service occupancy and a tenancy is important because, under a service occupancy, the employer landlord has the right to terminate when the employment ends; if the accommodation is let

For information on settlement agreements generally, see Practice Notes: Settlement agreements in employment—legal requirements, and Settlement agreements in employment—practical and tax issues. For information on the right to notice and payments in lieu of notice (PILONs), see Practice Notes: Contractual notice and Payment in lieu of notice (PILON). The right to notice under the contract of employment means a right for the employee to remain in employment for the period of notice, not simply to be paid for it. An employer will therefore often include in the contract an express right for the employer to make a PILON as an alternative to giving notice, to ensure the employer has the option of terminating the employee's employment and removing the employee from the workplace at any time. If there is a PILON,

A settlement agreement, unless executed as a deed, is a contract entered into between parties to a dispute. As such, the usual principles of contract law and the usual requirements of contract formation will apply. This means that where the requirements of formation are met, and with some exceptions (such as uncertainty or illegality), the parties to the agreement are free to agree terms as they see fit. It also means that the Contracts (Rights of Third Parties) Act 1999 (C(RTP)A 1999) is engaged. The key considerations when drafting a settlement agreement will be the same as for other contracts and will include identifying and defining the appropriate parties to the agreement. The parties to the agreement will not necessarily include all the parties involved in the dispute and it may

A Tomlin order is a form of consent order which first originated in the case of Dashwood v Dashwood [1927] WN 276 (not reported by LexisNexis®), where proceedings were stayed on terms which the parties had agreed, and only kept alive to the extent necessary to enable any party thereafter to enforce the terms. Unlike court orders by consent generally, a Tomlin order constitutes a binding contract between the parties so the court can only re-open the dispute between the parties where it could intervene with any other contract. What can the terms scheduled to a Tomlin order cover? Terms scheduled to a Tomlin order represent an arrangement between the parties and the court is not concerned with approving them, although it may properly offer suggestions upon them if it appears to

Shares that are bought back (other than by a private limited company for the purposes of, or pursuant to, an employees' share scheme) must be paid for on purchase pursuant to section 691 of the Companies Act 2006 (CA 2006). The equivalent provisions of the Companies Act 1985, sections 159(3) and 162(2) (now repealed), have been interpreted by the court as meaning that deferred consideration for a buyback