Compromise Agreement

A Compromise Agreement (also known as “Termination” or “Severance Agreement”) is an agreement which enables an employee and the employer to agree that the employee will not pursue a statutory claim or claims against the employer in return for compensation.

Compromise Agreements are recognised by statute and they are an exception to the general principle set out in all employment legislation that an individual cannot contract out of their statutory employment rights. They are the only way in which an employee can contract out of their rights under employment law. They enable employees to agree to compromise their own statutory employment rights in return for compensation. The main employment rights most often compromised relate to withdrawing an existing, or subsequently refraining from bringing a, claim to an Employment Tribunal and/or the courts.

Compromise Agreements are becoming increasingly common. They are often used to safeguard the interests of both employer and employee redundancy situations. In these situations it is common practice to offer a compensation payment (also known as “Ex-gratia Payment”) above and beyond the employee’s statutory redundancy payment.

Compromise Agreements are most commonly used:

  •  To settle an existing claim an employee might have against the employer
  • To prevent an employee from claiming before an Employment Tribunal and/or the courts
  • To avoid legal challenge in redundancy situations

Provided that the Compromise Agreement is legally binding once the agreement is signed, the former employee cannot subsequently lodge a case with an Employment Tribunal or the courts. That is a major plus for the employer. In return, the employee receives an ex gratia payment and both parties agree to keep the terms of the agreement secret.

In order for a Compromise Agreement to be valid it must comply with stringent statutory conditions. There are strict and well-defined requirements to be fulfilled to ensure that a Compromise Agreement is valid. A correctly structured Compromise Agreement will be legally binding on both parties.

The following conditions must be satisfied in order for the Compromise Agreement to be valid. If these conditions are not satisfied then the Compromise Agreement is not legally binding:

  • It must be in writing
  • It must clearly identify the complaints being settled. The Agreement must specify what specific claims the employee is agreeing not to pursue
  • The employee must have received independent legal advice
  • It must be signed by a qualified adviser who must have properly advised the employee of the statutory employment rights he has agreed to compromise
  • The adviser must be covered by a suitable insurance policy. The policy must cover the adviser against the risk of a claim for losses because of the advice that has been given
  • The agreement must contain a statement to the effect that the conditions regulating compromise agreements have been satisfied

Compromise Agreements are generally marked “without prejudice and subject to contract” to prevent an employee subsequently using evidence of an offer before an Employment Tribunal or court, should an agreement not be reached between the employer and the employee.

N.B. It is a common mistake to think that, where any payment is made on termination of employment, it is not taxable unless it exceeds £30,000.

The taxation of payments made on termination of employment depends on the type of payment made to an employee. If a payment or benefit is an entitlement under the contract of employment or the payment or benefit derives from the employment, it will constitute employment income and will be subject to tax. If a payment or benefit is not employment income, it is not taxable. Thus, if a termination payment and the value of any post-termination benefits is not taxable, the first £30,000 will be tax free.

Under a Compromise Agreement an employee receives all that is due to them by way of salary and benefits up to the termination date. A payment by way of ‘compensation’ is also made to the employee. In return for this the employee agrees not to bring any claims against the employer whether through the Employment Tribunal or the courts. Effective use of Compromise Agreements helps to prevent lengthy, costly and time consuming litigation by providing the parties with a clean break.

For a fully comprehensive Compromise Agreement, suitable for settling the claim of any employee please visit: