Top Tips for Negotiating Staff Exits

Tip 1 - Is There An Existing Dispute?

A without prejudice discussion must related to an existing dispute and be a genuine attempt to settle that dispute. A dispute could be something like disciplinary proceedings, a performance management process or a redundancy situation but the process will have to have commenced for there to be an existing dispute. If the necessary requirements are met the without prejudice discussion cannot be referred to in any subsequent employment tribunal or court proceedings in relation to that dispute, eg unfair dismissal, discrimination, breach of contract or whistleblowing claims.

Tip 2 - A Protected Conversation Can Take Place Prior to a Dispute Arising

A protected conversation or pre-termination negotiation can take place at a much earlier stage, before a dispute has arisen. It enables an employer for have a frank discussion with an employee with the aim of agreeing the termination of the employment. If the necessary requirements are met the conversation cannot be referred to in any subsequent employment tribunal claim for ordinary unfair dismissal. However, it can be referred to in other types of proceedings, eg breach of contract, discrimination or whistleblowing claims.

Tip 3 - Follow the ACAS Code of Practice and Guidance on Settlement Agreements

It is important that a protected conversation is conducted in an appropriate manner, there is no improper behaviour, the proposal is presented as an option rather than an ultimatum and the discussion has no bearing on any subsequent proceedings against the employee. There is no set process but the guidance envisages at least one meeting at which the employee has the right to be accompanied, an offer in writing and a period of 10 calendar days to consider the offer.

Tip 4 - Ensure That the Terms of the Exit Are Recorded in a Valid Settlement Agreement

The settlement agreement should set out the terms agreed between the parties. It must be a written agreement, relate to a particular complaint/complaints, the employee needs to take legal advice from a relevant independent adviser (who has appropriate indemnity insurance) on the terms and effect of the agreement, the agreement must identify the adviser and it needs to set out the relevant statutory requirements for valid settlement agreements.

Tip 5 - Remember the HE Specific Guidance

Any severance payments made to senior staff must be reasonable and justifiable and be made in accordance with the Committee of University Chairs' Remuneration Code and the Office for Students' Accounts Direction. Payments should be based on contractual and statutory entitlements and governing bodies need to explain the reasons behind any payment, with decisions being informed by appropriate legal advice where necessary.

You can watch our recent webinar on negotiating staff exits here.

For further information on negotiating staff exits, please contact Jane Byford, Head of Higher Education, on 07909 656 764, or complete the form below.