Settlement agreements in employment conflicts: How much should I get?

What is a settlement agreement?

A settlement agreement (once called a compromise agreement) is a legally binding written contract entered voluntarily between you as an employee and your employer. 

When you sign the agreement, you relinquish your right to take to an employment tribunal any employment claims referred to in the agreement that you might have had against your employer.

Shortly after you sign your agreement, you usually receive a financial payment and some non-financial benefits (eg a work reference and sometimes more) and formally conclude your employment.

The main advantage of a settlement agreement for you is that you can leave your employment on favourable terms.

You can also get financial and other compensation for your employer’s mishandling of your case without the need for costly, stressful, and time-consuming legal action in an employment tribunal.

Settlement agreement or compromise agreement?

Employment settlement agreements were previously called ‘compromise agreements’.

The name change followed a consultation in 2013 when it was decided that the term ‘settlement’ was a more accurate description of the process: people didn’t want to be thought of either winning or losing, as the term ‘compromise’ suggests.

You may sometimes still see/hear the old name being used.  Basically, the two names mean the same thing.

There are several examples of settlement agreements on our website and you might also like to have a look at our guide on concluding a settlement agreement for what you need to do to finalise it or to get it ‘signed off’.

What are the benefits of settlement agreements?

The main benefits of employment settlement agreements are that they can be used: 

• to secure financial compensation for ill-treatment at work without having to face the delays, stress and uncertainty of an employment tribunal 
• to negotiate a payment that is better than any statutory minimum (eg for notice period, holiday pay, redundancy pay) 
• to obtain non-financial payments included as part of your settlement package (see below for more detail) 
•  to make the most tax-efficient use of a compensation payment 
• to get final legal closure to an employment dispute in the fastest possible time
• to make a clean break from work before it reaches a stressful and possibly unpleasant conclusion.

So, for example, if your employer has suggested you’re underperforming, instead of trying to prove otherwise, you could suggest ending the employment on agreed terms.

Performance management is stressful for all concerned, therefore a settlement agreement may be beneficial for both the employer and employee. 

If you are thinking about negotiating your own settlement, have a look at our article on negotiating settlement agreements.

 

What financial payments are included?

The following financial payments would generally be included in settlement agreements:

•  Contractual payments up until the termination of employment
•  Payment in lieu of notice
•  A termination payment, including an ex gratia payment
•  Arrangements regarding bonus payments / share schemes/ long-term incentive plans (LTIPs)
•  Additional sums as consideration for new clauses of confidentiality and/or post-termination restrictions
• All other statutory/contractual claims that might arise in an employment context.

 

What non-financial terms can be included?

The best non-financial term to include in a settlement agreement is probably an agreed reference: see our article on obtaining references from employers.

Other terms which can be negotiated include:

• confidentiality clauses
• clauses that expect you not to ‘bad-mouth’ or disparage your employer (you can ask for the same from them)
• garden leave
• keeping company property like a car or phone
• keeping company-funded schemes like private health insurance.

See also our guide on company benefits in settlement agreements for more.

 

What’s an average settlement agreement payout?

The amount you get is entirely dependent on your particular case, so averages aren’t all that useful. However, in our experience, if you have:

• been employed for over 2 years and
• either been dismissed or forced to resign
• the evidence to prove unfair dismissal or constructive dismissal,

then a reasonable payment would be between 3 and 6 months’ salary plus notice pay. 

If you have evidence of discrimination or whistleblowing, you may be able to get more, and the 2 years service requirement doesn’t apply.

If none of the above applies, you are in a weaker bargaining position, although sometimes a settlement agreement payment is still possible.

Are there minimum payouts?

There are no legal minimum payouts. However, you’re unlikely to get compensation by way of a settlement agreement unless your employer (or former employer) is worried about the consequences of not settling.

For example, perhaps they are concerned about the risk of losing a tribunal claim or the stress and time of defending a claim.

Are there maximum compensation limits?

There are some maximum awards made by employment tribunals, in particular for unfair dismissal claims. (See our guide on unfair dismissal for details.)

Employers are not bound to use the same maximum payments, but they do use them as guidelines when negotiating payments with employees.

These maximums also don’t apply for certain claims, in particular discrimination or whistleblowing.

 

How does a settlement payment compare with a tribunal award?

If you take your claim to an employment tribunal, you have to consider all the inherent risks of losing the claim, the costs of hiring a lawyer, and the time and stress involved.

If you win a tribunal claim, the judge would award you an amount of money to compensate you for your lost wages whilst you tried to find another job.

Finding another job could take anything from a few weeks to several months, or longer.

Our guide on settlement agreements vs employment tribunals outlines more of the advantages and drawbacks associated with each option.

Basic awards for unfair dismissal claims

For an unfair dismissal claim, an employment tribunal would also make a “basic award”, as outlined in our main page on unfair dismissal settlements.

If the basic award is high enough, it would be worth reflecting it in any settlement agreement payment. 

Injury to feelings for discrimination claims

If the dispute is related to discrimination, you would also get a payment for ‘injury to feelings’, which again should be reflected in your payment. (See our page on discrimination for more about this and other related payments.)

Tax payable on compensation and awards

Note that whether you receive an award from an employment tribunal or agree to compensation, you may have to pay tax on at least part of it.

How much you pay depends on what it relates to and the amount. For example:

• Unfair dismissal awards are tax-free up to £30,000. 
• Discrimination awards also include ‘injury to feelings’ which are normally tax-free.
• But payments for unpaid wages or notice pay are always taxed. 

If you’re still in your job, you can use any tax savings to your advantage in negotiations with your employer. 

See our separate articles on the tax implications of settlement agreements and tax on pension payments and settlement agreements for further detail.

How much should you get for a redundancy settlement?

If the redundancy is genuine and the selection process is fair, then all you’re technically entitled to is the statutory minimum – see our article on redundancy – rather than any kind of enhanced or ‘ex gratia’ payment.

If the redundancy is unfair, or the selection process incorrect, then it may be a sham redundancy and you may have a case for unfair dismissal. 

In those circumstances, how much you should get would be similar to a dispute situation, as outlined below. You can also use our calculator to get a monetary estimate.

What factors affect dispute settlement payouts?

In an employment law dispute, there are many factors that combine to determine the settlement payment you should get.

For specific employment dispute situations, eg unfair dismissal, constructive dismissal, discrimination, our articles on those topics provide more details about financial payments.

Our calculator will also give you a fair estimate of what you might expect to receive in a reasonable deal.

For settling disputes generally,  some of the most common factors which influence how much you should get in your payment include the following:

Age of employee

If you are nearing retirement age then any claim could be of a much higher value because it could be harder for you to get another job, therefore your financial loss could be greater.

This is especially true if your job is quite specialist and hard to come by.

If you’re over retirement age however then you would potentially get awarded less because you were due to retire anyway.

Annual income

Everything is based on your salary, because the more you earn, the higher your claim.

Employment status

If you’ve already left your employment then this is a serious blow to your chances of getting a reasonable settlement. There’s no need for your (ex) employers to pay you off to get rid of you.

If you’ve already got another job this is pretty much the final ‘nail in the coffin’ because you can’t even claim that you have suffered any loss of income.

Bonuses or commission due

Often bonuses are discretionary rather than contractual, so we would normally try to negotiate at least that portion of your bonus that you can show should have been paid to you.

Commission is a different matter because normally commission is contractual. If your employer disputed this figure, we might not insist on them paying all your commission, but paying most of it would be a good result.

Disability

You could expect to receive more if you are disabled, because – although you may normally be able to do your job properly – it is easier for employers to make your working life harder by failing to make reasonable adjustments.

It can be harder to get another job too.

Disciplinary underway

If you are currently facing a disciplinary then generally you can expect less. This is because, regardless of the strength of your defence, your employer will undoubtedly try to blame you for the situation.

Discrimination

Where you have suffered discrimination this looks bad for your employer so you should get more money, so long as you have sufficient evidence, ideally in the form of a witness and/or emails/similar.

Discrimination in its various forms is very difficult to prove, so don’t expect a huge payout like the ones you sometimes hear about in the media. See also our discrimination in the workplace overview article.

Employment tribunal claim submitted

If you’ve issued an employment tribunal claim then it does make you look more serious about pursuing your claim and can encourage your employers to settle promptly.

On the other hand, you may have burnt some bridges, including any rapport with HR: your case will now have gone up to the legal department, who sometimes think that they have to win every fight.

Grievance submitted

If you have recently submitted a grievance then your employer will often want to pay you off rather than spend time and money investigating your complaint.

However, remember to see if you can short circuit this process by submitting a without prejudice letter first.

Legal representation secured

 If you approach your employer with specialist lawyers on board, then you are likely to receive more money.

That’s because your employer will realise that you are taking legal advice, that you are serious about your claim and that you might well take them to an employment tribunal.

In that case, they would also need to appoint lawyers themselves. They may instead prefer to pay you the money which they would otherwise have spent on legal fees.

Length of employment

You would tend to get more in your settlement agreement payment where you’ve worked for your employer for a long time because you’ve probably forged more loyalty there. Your knowledge about the company might be greater too, so things like handovers are more valuable.

Notice period

Normally we would negotiate for your notice period to be paid as a lump sum, and then ask for a couple of months’ money on top as a starting point, depending on the case.

Of course, if your notice period is very long, eg. 6 months, then you’re less likely to get anything on top of this.

That’s because an employment tribunal would normally only award a successful claimant enough money to tide them over until they find a new job. (See also our guides on notice periods and payment in lieu of notice.)

Size of company/organisation

The bigger and wealthier your company is, the more options they have should they wish to fight your claim – such as long drawn out investigations.

However, bigger companies often prefer not to have legal battles with ex-employees and they don’t like bad publicity either.

Small companies on the other hand sometimes can’t afford to settle a case because they just don’t have the money in the bank. So the medium-sized company here is the sweet spot.

Performance improvement plan (PIP) in progress

If you’ve been put on a performance improvement plan this can actually be a bit of a godsend. They’re going to have to pay your salary for the duration of the plan, so they might as well pay you that money just to get rid of you.

Also all the wasted management time and potential legal fees too – why not suggest that they just pay you that now in a settlement agreement and you will leave quietly?

Public sector organisations

In our experience, many public sector organisations have a policy of not negotiating with employees. Therefore, if you work in such a public sector organisation, your chances of getting offered a settlement agreement are negligible.

This means that you have to sue them in the employment tribunal, which is not a problem for us, but it does make life more difficult for you.

Sick leave

Being on sick leave can help to increase how much you should get in your settlement agreement, especially where you have lots of paid sick leave remaining.

If there’s a dispute, it makes sense for your employer to pay you this money as a lump sum rather than keep you on the payroll but off sick. (See also our guides on sick pay and sick pay in your notice period.)

Whistleblowing case

Whistleblowing is a tricky one! Companies, especially big ones, feel obliged to fully investigate – and of course to defend – any allegations of unlawful practice.

If you have information about practices within the company such as fraud or malpractice, then they will often want to pay you a lump sum in exchange for you signing a confidentiality or non-disclosure clause in a settlement agreement. Sometimes also called a ‘gagging clause’.

See our article about whistleblowing claims for more in-depth advice on what to do in such difficult circumstances.

Can I get a settlement agreement for a personal injury claim?

You may be able to negotiate a settlement agreement amount for personal injury. In employment situations, the most common types of personal injury are psychological injuries such as depression and similar.

Financial awards for personal injury have no upper limit but are closely aligned to the kind of injury that’s been suffered. They are notoriously hard to prove.

 

How do I ensure my settlement agreement is legally binding?

In order for a settlement agreement to be legally binding it needs to match certain legal criteria, which are quite complicated. But the actual document itself can be like one of the examples on our website here.

Then it needs to be reviewed and signed by your solicitor, who will also provide you with independent legal advice about whether the agreement is in your best interests.

There is always a fee provided by the employer for this and Monaco Solicitors don’t ask you to pay any further money than the fee your employer pays. (see our article on concluding a settlement agreement.)

 

Acas and settlement agreements

Acas is the UK government-funded Arbitration, Conciliation and Advice Service. Its Code of Practice on Settlement Agreements aims to help employers, employees and their representatives understand the implications of the Employment Rights Act (ERA) 1996 which governs the negotiation of settlement agreements. See our guide on Acas for more.

If your employer refuses to negotiate with you, you may have no option but to take your claim to an employment tribunal. Before you do that, you have to inform Acas that that’s your intention. One of their experienced officers (called ‘conciliators’) will try to help you to reach a settlement so as to avoid a full employment tribunal hearing. (See our guide on Employment tribunals: Commencing the Acas pre-claim process.) 

If they succeed, they use a form called a ‘COT3’ to record details of the agreement. The document is referred to variously as an ‘Acas settlement’ or simply as a ‘COT3’ and is explained in further detail in our guide called  COT3 settlements.

Both a COT3 and an ordinary settlement agreement essentially serve the same purpose.  However, there are some circumstances in which Acas helps both sides to settle, but you and your employer may decide to use lawyers and a regular settlement agreement instead of a COT3. 

Remember that Acas is a neutral body and not on either party’s side. Their conciliators do their best to make sure there aren’t unexpected terms that act against you.

However, if you reach a settlement agreement with assistance from your own lawyer, they’ll work to ensure that terms are in your favour as far as possible and that there definitely aren’t any unexpected terms in your employer’s favour.

How can I get expert help with my settlement agreement?

Monaco Solicitors specialise in helping employees navigate settlement agreements, from advising on potential and existing claims to negotiating on your behalf.

Our team of employment law specialists have years of experience in handling settlement agreements. As a firm that only represents employees, we understand your concerns and are dedicated to helping you get fair compensation.

It’s easy to find out if we can help you with any aspect of your settlement agreement. Just click the button below to get started.

Alternatively, you can email us at communications@monacosolicitors.co.uk 0r speak to one of our advisers by phoning 020 7717 5259

FAQ

1. What is the purpose of a settlement agreement?

A settlement agreement is a legally binding contract between an employer and an employee to resolve an employment dispute and usually also to end their employment relationship. 

The settlement agreement outlines the terms of the dispute resolution, including any financial compensation to be paid to you by your employer and  non-financial benefits such as a work reference or keeping company property such as a phone or car. 

It also includes a variety of other clauses to which you’re required to agree, like keeping confidential the settlement terms, relinquishing any future claims against your employer for the same misdemeanours, not to ‘disparage’ (or publicly criticise) your employer.

 

2. What are the requirements of a settlement agreement?

In order for a settlement agreement to be legally binding, the employee must have received independent legal advice on the contents before signing. The agreement must also be  in writing and signed by both parties. 

It is also common for settlement agreements to include a time frame for the employee to consider the terms and conditions of the agreement before signing: typically around 10 days.

 

3. What should I ask for in a settlement agreement?

When negotiating a settlement agreement with your employer, there are several important things you will wish to  ask for, including the following:

• Financial compensation: You will want to ask for an amount that at least reflects the loss you have suffered as a result of the dispute or the termination of your employment.
• References: If you are leaving your job, you should ask for a work reference from your employer that will help you secure future employment.
• Employment details: You may want to negotiate the terms of your departure, such as how your resignation will be presented to others, and what will be included in your personnel file.
• Future benefits: If you are entitled to benefits such as stock options or pension payments, you may want to negotiate for these to be paid out in full.

It is important to note that the terms of a settlement agreement will depend on the specific circumstances of your case. It is a good idea to seek legal advice before entering into any negotiations or signing a settlement agreement.

 

4. What are important terms in a settlement agreement?

Here are some important terms that are typically included in a settlement agreement:

• Release
• Payment terms
• Confidentiality
• Non-disparagement
• Liability
• Termination
• Jurisdiction
• Representations and warranties
• Dismissal of claims
• Remedies
  

 

5. What happens if a settlement agreement payment is not paid?

If your (former) employer does not pay you the financial payments set out in your settlement agreement,  you have legal options to enforce the agreement and collect the amount owed. 

The first step is typically to send a written demand for payment to the other party, outlining the terms of the settlement agreement and requesting immediate payment. Such action is more likely to result in a quicker response if the letter is sent by a lawyer.

However, if the other party still fails to pay, you may need to take legal action to enforce the agreement such as making a claim in a small claims court.