How to effectively approach Settlement Agreement discussions

The Helens

The Helens

Step One

Take a view as to who is the most appropriate person to open up settlement negotiations – neither the law or ACAS are specific. HR practitioners have expert people skills (at least we do) and are often best placed to negotiate agreements, but you may prefer to speak directly to the employee if you know them well. However, conversations can be difficult and there are countless areas of risk where managers who are not experts make costly mistakes.

Step Two

Book the meeting at a time when you are free either side. Cutting settlement meetings short can be extremely destructive to the negotiation process.

It is important the employee does not feel pushed into settlement negotiations against their will. This could jeopardise the ‘without prejudice’ nature of any discussion and the protections under section 111A of the Employment Rights Act 1996.

Step Three

Ensure you have an opening offer in mind. You may choose not to disclose this to the employee at the first meeting, depending on alternative options they may wish to explore.

Step Four Talk to the individual about alternative options that might be available to them. Stress these are options they can consider should they choose to. If they are not interested, the conversation need go no further. If they would like to consider alternative options, they can do so on a zero-commitment basis.

Step Five

Explain the process and what a settlement agreement is. Do not underestimate how daunting the meeting will be for the individual. Patience at this stage will help to build crucial rapport with the individual required to complete a successful negotiation.

Acknowledge the conversation may be difficult for both yourself and the individual.

Create a sense you are working through it together. It is a mutually agreed way of exploring options for bringing the employment relationship to an end, and possibly agreeing to one of those options. As well as explaining the legal basis, it is helpful to explain the main elements of an agreement.

Step 6 Even if you think you sound like a broken record, it is worth checking the individual is comfortable having the conversation. Invite them to take notes and explain they can contact you directly if they have further questions.

You may provide them with a copy of the agreement at the meeting and ask them to seek legal advice, or let them go away and think about alternative options before holding a further meeting.

For further information on settlement agreements, visit our website complexhr.co.uk.

In our next blog we look at preparing the draft document.

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