Negotiating a settlement

If you are being dismissed, made redundant or have a problem with your employer and are considering a claim in an Employment Tribunal, you may be considering a settlement. This article gives an overview of settlement agreements, what they are and how to negotiate a settlement. 

What is a settlement?

A settlement is a binding agreement between you and your employer or former employer. Typically in a settlement, you agree not to make a claim in an Employment Tribunal (or to withdraw a claim) in return for a sum of money from your employer. 

A settlement can also include an undertaking to do something – for instance, your employer might agree to stop treating you unlawfully, or agree to provide you with a reference.  

You may also commit in the settlement agreement to keeping the agreement and the circumstances leading up to the agreement confidential. 

If you don’t want to settle, or if you can’t agree on terms which address your concerns, you can go to an Employment Tribunal instead. However, there are many advantages to negotiating a settlement: 

• it avoids the stress of running a case and going through the Employment Tribunal process to a final hearing 
• it provides a quicker outcome, whereas many cases, particularly complex cases, can take over a year to reach a final hearing 
• there is no guarantee you will win your tribunal case, however badly you have been treated 
• you can receive things that the Tribunal does not have power to order even if you win, such as a reference or an apology 

How to settle

Your employer may approach you to discuss a settlement first (for instance, if you are being made redundant or if you are being dismissed). However, you can also start the negotiation process. 

To start the process, you can consider doing the following: 

Tips for negotiating a settlement

When negotiating a settlement, you should consider taking the following tips for success:

1. Decide how much you want to settle for – what is your ideal outcome, and what is the minimum you would be willing to walk away with? 

To decide how much you would be willing to settle for, you should consider how strong your case is and much the Tribunal would award you if you won. See our advice page on Compensation.

If your chances of success at the tribunal are low, or if the amount you could hope to receive from the Tribunal if you won is small, consider settling for a lower amount than the maximum you would hope to receive in the Tribunal. 

Be sure to seek advice if you’re unsure what your claim would be worth, and the likelihood that you would succeed in a Tribunal claim. There is information on how to assess how much you might be awarded if you went to Tribunal and you should use this figure as a basis to negotiate from. See our guide to calculating damages for help on this. 

2. Work out what your offer or counter offer should be 

When negotiating, start with a figure higher than the lowest that you would be happy to settle for. Your employer will expect you to compromise on what you originally ask for. If you start with a low figure, you will end up with an even lower one. On the other hand, if you start with an unrealistically high figure, your employer may refuse to negotiate altogether. 

Similarly, employers do not usually start with their highest offer and will usually offer something a bit higher if you negotiate. Having said that, some employers can be very rigid and refuse to increase their offer at all. 

3. Show you are serious 

You should make it clear to your employer that you are prepared to go ahead with a Tribunal case if no settlement is reached. Your employer may not make you an offer at all if they believe that you will not actually pursue the claim. 

You should be firm but not antagonistic in the tone of any letters you write or conversations you have. If you upset the person you are negotiating with, you are less likely to get a good deal.

Important!
During negotiations, you should be careful to ensure that the terms of the settlement agreement are expressed to be not binding until the agreement is signed by all parties. 
 
Also note that the amount agreed will not necessarily be tax free. Outstanding wages, bonuses, commission and holiday pay are all fully taxable. Non-contractual sums paid as compensation for loss of employment (ex gratia payments) are taxable, but subject to a £30,000 tax-free exemption.

The settlement agreement

There are two ways of settling and giving up your right to go to an Employment Tribunal:

• agree to a ‘settlement agreement‘ (a legal contract between you and your employer)
• negotiate a COT3 agreement through Acas

For more on settlement agreements, see our article on settlement agreements and COT3s.

Once Common terms of a settlement agreement include promises from your employer to pay you a sum of money, stop treating you unlawfully, provide you with an apology and/or a reference. In return, you may promise to waive your rights to bring a claim in the Employment Tribunal or court (or to withdraw a claim you have already submitted). This means that you cannot bring the same claim or a similar claim about the same matter before the Tribunal in the future. 

Your employer may also ask for you to promise that you have not discussed the complaint with anyone else and that you will keep the agreement confidential going forward. It is therefore best to avoid discussing your situation with anyone apart from close family or legal representatives.  You also may agree how it will be communicated that you left employment e.g. that you resigned or that you decided to focus on your family etc.

Time limits

Generally, you must bring a claim before the Employment Tribunal three months less a day from when conduct complained of (e.g. the dismissal or discrimination) occurred, depending on the nature of the claim. Find out more information on time limits. 

It is essential that tribunal time limits are kept in mind when conducting any negotiations before starting a claim. Time limits will not be extended just because negotiations are on-going between you and your employer or because it was thought that a settlement was about to be reached. 

The exception to this rule is during early conciliation with Acas. When you contact Acas, the time limit is ‘paused’ for one month (and an additional 14 days if this extension is needed). The time begins to run again from when you receive formal acknowledgement that early conciliation is finished. 

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

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