UK Law and Practice Contributed by: Phil Linnard, Philippa O’Malley, David Rintoul and Clare Fletcher, Slaughter and May
(although not necessarily) with an element of dishon - esty. There would typically be examples of gross mis - conduct set out in the employer’s disciplinary policy. At common law, if the misconduct is to be sufficient to justify summary termination, it must amount to a repudiatory breach of contract by the employee. Before an employee is dismissed summarily, the employer must establish that there are in fact grounds for such a dismissal. Usually this will require an inves - tigation and a disciplinary hearing, at which the alle - gations are put to the employee and they have an opportunity to make their case. The employee should also be given the right to appeal against the dismissal decision. 7.4 Termination Agreements In the UK, an employer and employee can agree to terminate the employment contract via a simple con - tract. However, this would not be sufficient to over - ride the employee’s statutory rights, for example as regards unfair dismissal or discrimination. Those statutory rights can only be waived if the appropriate statutory conditions are satisfied. One of these is that a termination agreement has been negotiated with an ACAS conciliator, which can result in a valid waiver of claims (and is known as a COT3 agreement). The other more common route in practice involves a “set - tlement agreement”. A settlement agreement must be agreed in writing and satisfy a number of other conditions as to its word - ing. Importantly, the employee must also receive independent legal advice from a lawyer, trade union official or other certified adviser, who must be appro - priately insured, in order for the settlement agreement to constitute a valid waiver of the employee’s statu - tory rights. The settlement should also relate to par - ticular proceedings, meaning that a blanket waiver of all claims an employee could make is unlikely to be enforceable (and the agreement should instead set out specifically the claims that are being waived). Employers commonly include NDAs in settlement agreements. These must however be carefully drafted, as there are legal restrictions on the scope of an NDA. It cannot, for instance, prevent an employee acting as a whistle-blower, or as a victim of a crime disclosing
information about that crime to prescribed individu - als. There are also regulatory expectations of solicitors who advise their clients on NDAs, to ensure that they do not inappropriately restrict departing employees from speaking out about wrongdoing. The ERB will render void any provision in a contract between an employer and a worker (including employ - ment contracts and settlement agreements) that attempts to prevent the worker from making allega - tions or disclosures of information about harassment or discrimination. This also extends to disclosures about how the employer responded to such allega - tions or disclosures. Employers should therefore be mindful that, once this part of the Bill comes into force, any provision purporting to prevent discrimination related disclosures will not take effect. 7.5 Protected Categories of Employee Dismissal of some employees for specified reasons may be “automatically unfair”. These include where the sole or main reason for the dismissal is: • that the employee is a whistle-blower (see the fol - lowing); • a business transfer (see the following); • related to pregnancy, childbirth, flexible working or family leave; • health and safety related; • by reason of the employee acting as an employee representative or a trustee of an occupational pen - sion scheme; and • that the employee asserted a statutory right. In some cases this means that the employee does not require the usual two years’ qualifying service in order to claim unfair dismissal, and/or that the usual cap on unfair dismissal compensation does not apply. Whistle-Blowing Workers have the right to not be subjected to a detri - ment or be dismissed because they made a “protect - ed disclosure”. This is a disclosure of information that, in the reasonable belief of the worker, is made in the public interest and tends to show that a specified type of wrongdoing has occurred. These include criminal offences, dangers to health and safety, environmental damage or breach of any other legal obligation. The
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