As well as being legally proficient, HR professionals need to be ableconfidently to conduct negotiations over terminations in a way which minimisesthe exposure of the employer to legal liability. As well as a good grounding ofthe legal issues involved, they need to have a working knowledge of when to act”without prejudice” The ability to bargain hard also comes in handy.Legal issuesEven if it includes a full waiver clause, a simple termination agreementwill not waive the employee’s statutory rights. The advantage of such anagreement, however, is that it can be done informally, in an atmosphere oftrust. The employer will take the risk, of course, that a statutory claim willbe made, although it can usually set off any ex-gratia payments already made tothe employee against any such claim. It is sometimes a useful device to delay part of the termination payment toa time after the time limit for bringing such statutory claims. It is alsocommon to see agreements which expressly state that all monies paid to theemployee are repayable in the event of a tribunal or court claim being made. To waive a statutory employment right, there needs to be either a validstatutory Compromise Agreement or a COT3 form drawn up under the auspices of Acas.It should be noted that if a COT3 form is desired, the Acas officer should beinvolved throughout the negotiations. Acas officers usually refuse to”rubber stamp” an agreement which has already been made withoutactive conciliation by the Acas officer. Practical issuesIs it best to suggest to the employee “up front” that there couldbe an amicable termination settlement, or to allow this to develop after”on the record” proceedings? The answer often depends on the legal positionof the employer. If there are strong legal grounds for dismissing the employeein any event, negotiating before demonstrating this may be unwise. This wouldusually mean at least initiating the disciplinary proceedings or even carryingout the dismissal. If the employer’s position is relatively weak, however, it is sometimesadvisable to suggest a “free and frank” discussion with the employeeoff the record before making a move. All avenues can be explored in a way whichmight lead to a potentially acceptable settlement. Employers will need to becareful how this is handled in order to avoid a claim for constructivedismissal. However, since a dismissal is usually being considered, this riskmay not be unpalatable. Employers should also bear in mind their tactical advantage in negotiations,even if they have a weak legal position. The employee will be looking for areference and continuing income. In such situations, the employer could put two contrasting outcomes to theemployee – an amicable settlement with the continued provision of benefits forthe notice period, a reasonable termination figure, and the ability to agreeannouncements and references, or on the other hand, an abrupt termination withthe legal minimum only being paid. by Russell Brimelow Head of the employment group Boodle Hatfield Related posts:No related photos. Previous Article Next Article Termination negotiationsOn 14 Mar 2000 in Personnel Today Comments are closed.