Settlement Agreement – Points to consider when negotiating with employer and/or to discuss with your legal adviser
The checklist is not exhaustive and is intended for fairly general application. This checklist does not constitute legal advice but acts as a guide only. You are advised to seek independent specialist legal advice.
Identify the terms of your contract of employment which may be recorded in one or several documents and obtain copies of all relevant documents, including:
Any offer letter(s).
Any written contract(s) and side letters.
Any staff handbook(s).
All policies or procedures.
Any relevant correspondence between the parties
Any relevant board minutes.
Establish who is the employer and its address or registered office – should be recorded in agreement.
Check your gross and net salary – in order to determine the real value of the compensation.
Check the next salary review date and any obligations to increase the salary – is the compensation based on existing salary or should it take account of an imminent pay rise.
Check the notice period or, if there is a fixed term, when the fixed term will expire.
Identify any benefits schemes in which you participate, and whether they are contractual (for example, car, fuel for private mileage, bonus, commission, pension, incentives and medical, life or permanent health insurance). Check your rights under these schemes on termination. To ensure that any package reflects these entitlements.
Check if there is a right to pay in lieu of notice and, if so, any terms relating to the amount of the payment, is it basic pay only or does it include contractual benefits such as a car allowance.
Check if there is a right to send you on garden leave. You may wish to remain on garden leave for a period, for example to help secure new work.
Check if there are any restrictive covenants or confidentiality obligations. If so, establish if you want to amend any of these restrictions.
Are you a director or company secretary of the employer or any group company or hold any offices, trusteeships or other positions as a result of your employment. If so, establish what has to be done to remove them.
Check if you hold any nominee or qualifying shareholdings that need to be transferred on termination.
Check any share rules to establish the effect of termination.
If you are or were a shareholder of the employer or any group company, check the shareholder agreements, articles of association and terms on which you ceased to be a shareholder (for example, the agreement under which the shares were sold).
Check any other documents that govern the relationship between you and the employer or any group company.
Establish your start date and the reasons for any breaks in the contract so as to calculate statutory period of continuous employment.
Establish the reason for the proposed dismissal will this be recorded in the agreement or on any reference.
Are you being made redundant? is there an enhanced redundancy scheme?
Establish the proposed termination date, what suits you as this can be negotiated.
Establish the extent of any unused or overused holiday entitlement and any terms relating to payment or repayment – will the employer waive overused holiday?
Identify any company property held by you that should be returned on termination (for example, car, credit card, keys, security pass or laptop).
Identify any outstanding expenses, training costs or loans that need to be paid or repaid, if owed check if the employer can waive any of these.
Whether to continue any benefits after termination (health cover if in use for example), or do you want to retain any company property such as laptop/phone number etc.
Will the employer pay a contribution towards your legal fees- usual practice.
Is the employer prepared to offer outplacement counselling.
Is the employer prepared to offer an agreed-form reference, you may wish to draft this or add your input.
Ensure that the tax treatment of the payment is correct as the employer will seek an indemnity from you.
Establish the content and timing of any internal announcements over your departure.