The term ‘dependant’ is defined as someone who depends on you financially (i.e. for money and accommodation). A dependant can be your husband, wife, partner, child, parent, or grandparent. Please note that this list is not exclusive, and it is possible for others, for example your siblings, to be classified as ‘dependants’.

As a dependant, you can apply to join your relative in the UK. The type of leave (i.e. limited or indefinite) you can apply for will depend upon the status of your relative within the UK:

• If you are a parent, grandparent, or other dependant relative of a “settled relative”, i.e. a British citizen or a person settled in the UK, you can apply for indefinite leave to remain, i.e. permission to settle permanently in the UK with them.

• If you are the partner or a dependent child under the age of 18 of a migrant who is in or entering the UK under either most categories of the Points Based System or most work categories outside of the Points Based System, you can apply for a visa to join them whilst they are in the UK.

You must apply for this extension to your visa before your current visa expires. If you are successful in your application for FLR, your passport will be stamped accordingly to confirm the extension to your visa to remain in the UK for a further limited time.

Please note, however, that your ability to apply for FLR is dependent upon your current immigration category. For example, if you are in the UK under the Tier 5 Youth Mobility Scheme, you will be unable to extend your stay further.

It may be possible to extend your stay in the UK by switching into a different immigration category. So, for example, if you are present in the UK as a Tier 4 student, it is possible for you to extend your stay by applying for a Tier 2 (General) work visa, hence switching between immigration categories. This, of course, is subject to you meeting the eligibility requirements for the new visa.

How FLR differs from ILR…

FLR only extends your permission to stay in the UK for a specific, fixed period. However, indefinite leave to remain (ILR), also known as ‘settlement’, extends your permission to remain in the UK without any time restrictions on your length of stay.

Headlines

Damien Green reaffirmed the creation of a “sustainable, selective immigration system” that encourages the “brightest and best to come to the UK”.

The UK Border Agency reported that an airline crew member has been arrested for attempting to smuggle in dozens of counterfeit passports and fake passport materials under his clothes.

Best of the Blog

At Home …

No deportation without representation: Henry gave this week’s office talk about how those who make unsuccessful visa applications cannot now be deported without the opportunity to contact a lawyer who is able to prepare a challenge.

The importance of being truthful: The Court of Appeal highlights just how important being truthful and including all relevant information is vital to the success of your immigration application.

Compromise Agreements: we explain what they are, their effects and benefits.

Sign by Direction: When signing a will at the direction of the testator, there must be some positive instruction; the testator being passive is not enough.

… And Abroad

Law Society Gazette: We discuss how 2012 is going to be a good year for immigration practitioners.

On the Fringes

How Ironic…

Hacking network ‘Anonymous’ has released a tape which apparently is a recording of a conversation between the FBI and Scotland Yard discussing efforts against, yep you guessed it, hacking… To make the situation even more embarrassing, the conversation discusses the tracking of Anonymous and other hacking groups, dates of planned arrests and details of evidence held by police.

Speedy Resignation

The Energy Secretary, Chris Huhne, in keeping with his apparent speedy nature, has resigned after being informed that he is to be charged with perverting the course of justice over a 2003 speeding case. It’s been reported that his now ex-wife Vicky Price, will face the same charge over the allegation that she accepted his speeding points. Mr Huhne is maintaining his innocence, but has resigned to “avoid destruction”.

Football one, telling the truth nil

The prosecution in Harry Redknapp’s (manager of Tottenham Hotspurs) trial for tax evasion has told the Court that his admission of lying to a News of the World Reporter is “extremely telling”. Redknapp denies allegations that a sum of £189,000 paid into his account was a bonus for profits on transfers while at Portsmouth FC. Redknapp said he lied to the reporter because he wanted to avoid negative stories ahead of a cup final…it’s always good to have a manager that puts his club before everything else…

The Force’s Dark Side…

It’s been reported that Gwent Police have made a substantial out-of-court settlement after stopping businessman’s Robert Whatley’s car and smashing its windows after a 17 minute pursuit for not wearing a seatbelt. A disciplinary panel cleared the two officers in question, finding their actions as justified. Gwent Police do not accept any liability, stating that the decision to settle the matter out-of-court was made on financial grounds. The lesson? Safety first, always wear your seatbelt!

Indirect disability discrimination

Indirect discrimination occurs where a PCP applied by the employer affects those with a protected characteristic more than those without the protected characteristic, even though the policy or rule applies to everyone and was not aimed at targeting those with a protected characteristic. In the case of disability discrimination, if a policy or rule imposed by the employer puts a disabled person at a substantial disadvantage as compared to a person who does not have a disability, then the employer has a duty to make reasonable adjustments to avoid the disadvantage.

The duty to make reasonable adjustments is to ensure that a disabled person has the same access to a job as a person who is not disabled, although what is reasonable will depend on all the circumstances, taking into account factors such as the cost and practicality of implementing the adjustment. A reasonable adjustment may involve the employer providing extra equipment, improving access to the workplace, or making changes to working practices.

Facts

The relevant practice was a hot desk system used by the employer. The claimant worked as an Emergency Medical Dispatcher on a shift system. To maximize the space available in the control room, employees did not have their own desks and when they arrived for work would use any desk that was available. The claimant, who has a psychiatric condition described as social anxiety disorder, found that the hot desk system caused him anxiety and asked to be permitted to sit at a particular desk when at work. The employer agreed to this arrangement and that the claimant’s preferred position would be reserved for his arrival.

However, although the employer had tried to accommodate the claimant’s request, on several occasions the preferred position was not available and a reserved sign was never placed on the desk. In response to a final occasion when the preferred position was not immediately available, the claimant resigned and made a claim for constructive unfair dismissal and disability discrimination.

His claim was that the requirement to hot desk was a PCP applied by the employer that substantially disadvantaged him in comparison with a non-disabled person and that the employer had not made reasonable adjustments to remove that disadvantage.

Employment Tribunal allows claim

The tribunal held that because the claimant was allowed to sit in his preferred position, the hot desk PCP was not applied to him. The claimant was therefore not at a disadvantage and a duty to make reasonable adjustments did not arise. The claim for constructive dismissal was rejected; although the claimant perceived that the employer had not taken steps to accommodate him, the tribunal found that the employer had acted reasonably and there had not been a fundamental breach of contract. The claimant appealed.

Employment Appeal Tribunal finds error of law

The Employment Appeal Tribunal accepted the claimant’s appeal finding that the tribunal made an error of law in deciding that the PCP of hot desking did not apply to the claimant. The tribunal should have asked whether a PCP applied by the employer put the claimant at a substantial disadvantage as compared with a non-disabled person. It was clear that the PCP of hot desking affected the claimant, even though he was exempt from this requirement. It was arguable that the PCP of hot desking placed the claimant at a substantial disadvantage and that the case should be remitted to the Employment Tribunal to determine if this was the case.

Employers should ensure that any policies they have are not indirectly discriminatory. A PCP applied to all employees may put a group of employees at a disadvantage; employers should make provision for adapting their policies where necessary to ensure compliance with anti-discrimination legislation.

What we did learn is that, in Matt Cavenagh‘s words, “ the current Conservative mindset simply misunderstands the nature of immigration, and its potential, human as well as financial.” With much of the old background music being repeated in different keys the performance was familiar; but it did give an indication of the sort of changes we can expect to hear more about over the next few months.

New Policy

In his speech on immigration policy at the think tank Policy Exchange, Mr Green said he wants to change the focus of immigration policy, introducing the principle of double-plus selectivity to change the type of immigrant that is admitted to the UK so that we only attract the “brightest and the best.” In support of this he tells us that the new policy of selection will ensure that only people who make a contribution will come to the UK. He wants to move from a points based system to a contribution based system.

All this is much the same as the government has been saying for two years; it’s all part of reducing immigration to the tens of thousands.

We know that the rules for settlement (Indefinite Leave to Remain) are going to change, but this will be announced in detail before May. The salary requirement for non-EU workers will be increased to at least £31,000 and the income requirement for a UK citizen to marry a non-EU foreigner will be £28,000.

Damian Green thinks that being “precisely selective” will avoid “importing economic dependency on the state.”

He is also going to prevent spouses and fiancées of immigrants coming here unless they speak English. As I’ve said before, other considerations aside, that is just rude.

And there are plenty of reasons to think that this is another example of why immigration policy is moving in the wrong direction.

John Jacob Astor

The nineteenth century saw mass migration from Europe to America. People from all over Eastern Europe went to America and lived lives of comfort that could not have been imagined in their native villages. When they returned home in their coats and shoes people treated them with suspicion. And America benefited as much as the migrants. The huge US economy was built on the work of immigrants.

In 1783 a young man from London, the son of a poor German father who had only ever know harsh poverty at home, used money he had saved to get a ship to America. That winter the sea froze in Chesapeake Bay and the ship was motionless for two months. During this time the young German befriended another German who had gone to America before him. He discovered that there was good trade to be had in furs.

Buying furs in America and selling them in London could make good money. And the amount of capital needed to get into the trade was minimal; with just a basket of cakes enough furs could be brought at the wharf to make a profit form a New York furrier.

On arrival in the city the German boy went to work as apprentice to one Mr Browne, where he learnt the fur trade.  In 1786 he was in a position to set up his own shop. He went on to become one of the richest men in America, saying in his old age, “the first hundred thousand dollars – that was hard to get; but afterward it was easy to make more.”

He was John Jacob Astor, one of the wealthiest men who ever lived. He created wealth and jobs and built a huge trading empire; his family invested in much of America. When he arrived he was a poor German boy with a small bit of money; when he died he had been one of the most successful immigrants the world ever knew.

What a good thing Mr Green wasn’t Secretary of State in America in 1784, being “precisely selective” and letting only “the brightest and the best” to enter the country. He wouldn’t have thought twice about turning the world’s greatest businessman away.

Playing at politics

As Daniel Knowles has written, this is a dishonest discussion. The government is trying to prevent arranged marriages as much as it is trying to reduce the sheer number of immigrants. But it is not being honest about its intentions. It is the same when Damian Green says he wants to only bring in people who will benefit the country: this is political euphemism for wanting fewer foreign people to come here.

I have written on the Barrister’s Hub blog about contact theory. This is the idea that the less segregated people are the more tolerant their attitude of others is. Psychology shows us that children who are put into red and blue outfits develop exclusive behaviour. Richard Dawkins calls this, “in-group loyalty and out-group prejudice.”

And the same is true of immigration. Younger people and people who live with immigrants in their community are far more accepting of them than older people who have little contact with immigrants. This is bourne out in figures from the Migration Observatory.

Immigration breeds tolerance: if immigration is a social problem, it is one that will resolve itself. And there are, as we have written at the Adam Smith Institute, many economic benefits of immigration: GDP increases, wages go up, productivity is better, jobs are created as much as they are lost; and as Jonathan Portes shows, immigrants are net contributors to public services not net users.

Even the Migration Advisory Commission, which tells the government more or less what it wants to hear, contrary to most economic opinion, agrees that reducing immigration will be bad for the economy.

We are reducing the number of opportunities for students and workers to come here at the same time as Australia and Spain are liberalising. What inherent benefits do we have to attract the best immigrants; we are making it harder for them to stay after they study, harder to bring their families, harder to renew their visas.

We are introducing more costs, more time, more red tape to businesses who want to employ foreign workers at a  time when Europe has one of the least competitive labour markets in the world.

Damian Green talks about the economic benefits, but he means protecting native jobs, not benefiting the economy. And there is no guarantee that the same jobs will be available to natives. We have different skill sets, different labour skills; it is improbable that someone like Pret, who mainly employer European migrants, will quickly transfer to native workers for the same work without losing some of those jobs along the way.

How can we benefit from immigration?

Immigrants are not the problem the government likes to suggest they are. We all benefit, economically and socially, from migration to this country. Limiting immigration means limiting those benefits. Why would a successful businessman whose wife doesn’t speak English want to come here? Why would an ambitious student want to bring their skills (and money) here if the opportunities to stay afterwards are so limited?

We can benefit from immigration by accepting immigration.

The right to liberty

The removal of the family was illegal. It did not comply with the relevant rules; most obviously, the family was not notified that it was going to be removed. It was not conceded by the Home Secretary (the incumbent has changed four times since 2006 – John Reid, Jacqui Smith, Alan Johnson, Theresa May) that this was the case until “a very late point in these proceedings”.

In fact, it was five years after the family started proceedings in the courts that the Home Office conceded that it had been illegal to remove them in that manner.

The family was successful in claiming basic, aggravated, and special damages. They also obtained an order from the judge that the Home Secretary is to allow them to return to the UK; once returned they will then be able to make an application to remain here.

As the facts of the case will show the opening words of Cranston J are not too harsh:

This case does not reflect well on either the conduct of the Secretary of State (or at least those for whom she is responsible) or on the administration of justice … As regards the administration of justice the case can be characterised as having, at the very least, an unfortunate procedural history.

The court is right to point to the bad reflection this gives of the Home Secretary. Whether you believe that Human Rights are an extendable part of a social democracy, or the conservative codification of civil liberties that act merely as a hedge on government intrusion, this case will be one that offends your beliefs. The right to liberty has a long history from King John through the Petition of Right, the American Constitution, Habeas Corpus, and now the Human Rights Act.

And the judiciary are famous upholders of the rights of the British people not to be detained or unlawfully interfered with by the government.

In Entick v Carrington the government went to a printer’s house with a warrant that had no basis in law. Entick was given damages for the removal of his property: the judge said that men enter into society to protect property, and the government could not interfere in that unlawfully. This case is in the tradition of that one; as John Locke said, “every man has a property in his own person.” And although this warrant was lawful, the correct procedure before deportation was not followed in any respect.

Immigration law often overlaps with constitutional issues, and this case is a great example. Immigration is an area where public morals often blur into a vague distinction about citizens and immigrants; sometimes there is a feeling that the government has different obligations to immigrants than to citizens. But when someone in within the jurisdiction of the government of the United Kingdom then they can enforce rights against that government irrespective of their citizenship status.

We don’t want the government to detain anyone unlawfully, irrespective of who they are. This is because we want to limit the government’s ability to imprison us – loosening the rules for immigrants will only loosen them for citizens too. If the government was allowed to deported immigrants without following due process it would not be long before they would detain citizens without due process. Cases like this are fundamental to liberty.

Damages of £31,000 and the right to return to the UK, is a just outcome. As the facts will show, this is an appalling case from the perspective of individual liberty and the conduct of the government.

Facts

1959 – M, the claimant, is born in Sri Lanka

1987 – M marries the second claimant

1988 – M goes into hiding in Sri Lanka (he is a Tamil, and there was a civil war); son born

1993 – daughter born

Feb 1995 – M arrested

Jun 1995 – family bribes way out of country

28th Jun 1995 – family arrives in Germany, applied for asylum

Nov 1996 – asylum refused

1997 – second daughter born

10th Mar 1999 – arrive in UK

Mar 1999 – temporary admission granted

21st Jun 1999 – Home Secretary decides to return family to Germany

Jun 1999 – family starts living in Edgware; Germany accepts responsibility for family under Dublin Convention

17th Jul 1999 – removal directions set; cancelled when Judicial Review proceedings brought

2001 – further temporary admission with condition to attend an interview; mother’s mental health causes her to be admitted to a mental health unit

17th Nov 2001 – claim recertified by Home Secretary

Jan 2002 – medical reports requested

Feb 2002 – Judicial Review withdrawn

2002 – 2005 – nothing is done to remove the family, they receive asylum support

Jan 2004 – mother re-admitted to hospital

2005 – Home Secretary announced one-off concession for families who claimed asylum before Oct 2000; M is refused on grounds that Germany is responsible for his asylum claim

Mar 2005 – mother discharged from hospital

Nov 2005 – Home Secretary requests medical reports

Dec 2005 – Article 3 claim refused; letters regarding this reached M when he was deported.

Dec 2005 – decision to deport family to Germany

Courts and Judgements

Permission to apply for judicial review was given in early 2007, and at a hearing later that year it was accepted that the letters from December 2005 had never been served. The judicial review was heard in 2008; but then the judge fell ill, and judgement was delayed by one year until August 2009.

In the court of appeal it was agreed that the judge had misunderstood the factual matrix of the case, and it was remitted to the Administrative Court.

Access to Justice

In a letter of 18th January 2011 the Home Secretary accepted that the removal had been unlawful because it had denied access to justice. This was dealt with in detail in the more recent case of Queen (on the application of Medical Justice) v SSHD. 

This case

This case was about two simple things:

1. whether the family could be returned to the UK;
2. damages.

Return to the UK

Although there is an absence of case law on the point the judge decided that he should use his discretion to order the Home Secretary to return the family to the UK. The conduct of the Home Office was the principal reason, there were two parts to this:

1. Home Secretary’s conduct leading up to the removal in 2006. This includes: the failure to serve the letter in December 2005; the lack of a pastoral visit prior to deportation; the lack of access to legal advice.
2. Home Secretary’s conduct in this litigation. First there was the delay in accepting that the December 2005 had not been sent; then there was the delay in conceding the unlawfulness of the detention.

Damages

Following the dicta of Lord Woolf in Thompson the court decided that basic damages should be awarded at £2,500 for the father and son, and £3,000 for the mother and daughter. These are calculated on a sliding scale over the period of time: the tariff is approximately £3,000 for the first hour. Taking inflation into account, that is £4,600 in today’s money. The first hour of deprivation of liberty is worth £500.

Aggravated damages are awarded for humiliating circumstances. In this case the hour of night, and manner of conduct, made the detention especially traumatic – especially for the mother. The father and son received a further £2,000 and the mother and daughter another £3,000.

Special damages are for quantifiable monetary loss. The manner of removal meant that the claimant had lost property left in the house to the value of £10,000. All of that was awarded in special damages.

The Facts

What the Dickens?

The case was being disputed by the descendants of the man who made the will, and the descendants of the woman who was the beneficiary of the will. This has not been a quick trial process. Inevitably this has drawn comparisons in the newspapers to the case of Jarndyce v Jarndyce, which occurs in the novel Bleak House by Charles Dickens.

But the comparison is false. That case consumed the entire estate in costs, ran for multiple generations, cost one man his life, and was the result of impenetrable drafting and arcane procedure on the old Court of Chancery. The scope of that case was such that,

The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world.

This dispute has taken a few years to resolve, and a contentious case in probate always makes for a good story; but this bears no resemblance to Jarndyce v Jarndyce at all.

A valid will?

What really happened was that Martin Lavin, who died on 11th January 2004, made a will on his deathbed. This had been signed with the assistance of his sister, Anne Liston. She was also the main beneficiary under that will.

It was drawn up by his niece, who had worked as a legal secretary.

Anne Lister died before the date of the first trial, which is why the case became a contest between the descendants of the testator and his beneficiary. Michael is Martin’s nephew, and he is contesting the will against Hanora who is Anne’s daughter.

First Trial

Lies in Court

The validity of this will was disputed. The niece who had drawn  it up (who was Anne Lister’s daughter) Hanora, supported the validity of the will, as did Staff Nurse Harris.

At Martin’s request, Hanora drafted a will that left everything to Anne. Hanora said at the first trial that she read him the will, he then took it, read it, and signed it. The signature was witnessed by two nurses.

Hanora and Staff Nurse Haris both said at this trial that Michael had signed the will unaided. However, on the basis of evidence from handwriting experts the judge concluded that Martin did not sign the will: “his name was written by someone else.”

With a lack of any further evidence the judge was unable to determine who had signed the will, and under what circumstances.

The Missing Witness

The second nurse who had witnessed the signature, Staff Nurse Hawadi had not given evidence at this trial.

She was tracked down and she then gave a statement in which she said that either Anne or Hanora held Martin’s hand; she was certain that the “pen was in his hand when the will was signed.”

On the grounds of this fresh evidence the Court of Appeal agreed to an appeal against the judge’s order. They then directed a re-trial.

Second Trial

The plot thickens …

At the second trial Hanora changed her evidence. She now remembered her mother, Anne, holding Martin’s hand to stop it shaking and thereby “enable him to sign.” Because Martin’s hand was shaking Anne went to him and “between the two of them they signed the will.”

Staff Nurse Haris also changed her mind the way the wind changes direction and said in her statement at the second trial that Anne held Martin’s hand, but not the pen.

Staff Nurse Hawadi, who had been absent from the first trial, also confirmed that Martin signed the will with Anne steadying his hand.

The Secretive Niece

Graphological evidence did not support what Hanora alleged. And the judge was critical of her behaviour. She had concealed Martin’s will from 2002, even though she had been ordered to file an affidavit of scripts; she concealed other papers relevant to the estate, which she had not disclosed to Michael or to the Court.

He did say that her comment, “between the two of them they signed the will” had ”a greater ring of truth” than anything anyone else had said. But this left the situation ambiguous; Honora really didn’t know what had happened.

The new evidence from Nurse Hawadi, which only appeared for the second trial, was not reliable: it was too dogmatic, as if she were compensating her absence from the earlier trial.

Directed Signature

The judge concluded that Anne had signed the will “at Martin’s direction.” He said that Anne did not steady his hand, but took the pen and signed on his behalf:

the act of attempting to sign personally and failing to do so, having expressly said he wanted to make a will and expressly approved its contents, together with allowing Anne to sign on his behalf, can and should be taken as a direction by conduct to Anne to sign the Will in those terms on his behalf.

The Court of Appeal … again

Wills Act 1837

Under section 9 of the Wills Act 1837 there are two valid ways in which a will can be signed. It can either be signed by the testator, or it can be signed by someone else at the testator’s direction. Looking at the dictionary definition, as well as the ordinary meaning, of the word “direction” led Lord Justice Lewison to say that being in the presence of the testator is not enough; the will must be signed “at the direction of the testator.”

This means that passivity on the part of the testator is insufficient; they must be “something in the nature of instruction.”

Case Law

There is little case law in this area, none of the precedents is binding on the Court of Appeal. These decisions were not directly applied, but they did elucidate a principle.

Parker v Parker (1841) Milward 541

The testator tried to sign the will twice and could not. The solicitor took the pen and asked if he should sign it on the testator’s behalf. The testator nodded, and said yes.

Lord Justice Lewison said that the clear thrust of the judgement was that there must be “some positive communication of his desire” from the testator.

Jenkins v Gaisford (1863) 3 Sw & T 93

The testator has difficulties signing his name, so he had an engraving of his signature made. There was a codicil to his will which needed his signature, and his assistant used the engraving “in compliance with express orders and directions.”

Lord Justice Lewison said it was hardly surprising that this was valid: express orders were given.

In b. Marshall (1866) 13 LT 643

On the construction of the section I am very clear that, by act or word, the testator must in some way indicate to the two witnesses present that the signature was put there at his request. Of course, if a previous positive direction had been made to the agent to sign the will, it might not be that the testator would repeat that in the presence of the witnesses; but he must do something to show that they understood at the time that the other party was signing for him. [Emphasis added].

Fulton v Kee [1961] NI 1

 the testator’s direction to another to sign on his behalf need not be expressed formally or even voiced. It is enough if the testator manifests his direction by his conduct: see Parker v Parker (1841) Milward 541

Lord Justice Lewison

Having considered the cases above, as well as one or two others, Lord Justice Lewison disagreed with some dicta from the case of Fulton v Kee which held that the direction can be implied through negative behaviour, holding that the authorities, and the principle, were to the effect that, “something active on the part of the testator must also be required.”

Allowing negative conduct would run contrary to the meaning and the spirit of the Wills Act 1837.

In my judgment the court should not find that a will has been signed by a third party at the direction of the testator unless there is positive and discernible communication (which may be verbal or non-verbal) by the testator that he wishes the will to be signed on his behalf by the third party.

Because the evidence “fell short” of showing any positive communication he held that the will was not properly executed and admitted the previously concealed will, from 2002, into probate.

He also said, obiter, that,

it is plainly undesirable that beneficiaries should be permitted to execute a will in their own favour in any capacity; and that Parliament should consider changing the law to ensure that this cannot happen in the future.

It is seems unlikely that the government will find the time to fit this into their legislative programme, but if they do we will be sure to let you know.

How do I get a compromise agreement?

Compromise agreements can be used to settle any statutory or contractual claims that an employee may have against his employer, such as unfair dismissal or discrimination. They are usually used when employment ends, but there is nothing to stop a compromise agreement from being used after a grievance, with the employee going back to work content that the dispute has been resolved. So the agreement draws a line under that particular dispute.

A compromise agreement is often offered where the employer recognises that the employee has a claim against them and wants to buy off liability, particularly where the correct procedure has not been followed. However, in some cases the employer will need to be convinced that the employee has a potential claim against them.

It may be helpful to seek advice on how to present your claim to the employer to maximise your chances of being offered a compromise agreement. Employers are likely to be amenable to settling a potential claim against them where they think are likely to lose, or where the costs of defending a claim may be more than the cost of a settlement.

Signing a compromise agreement

The employee must receive independent legal advice on the terms and effect of the agreement for the compromise agreement to be valid. This is because they will be signing away their right to bring a claim against their employer. Requiring the employee to seek independent legal advice on the agreement ensures that they are not forced into accepting a bad deal on stringent terms dictated by the employer.

It is common for the employer to pay a contribution to the employee’s legal fees in obtaining legal advice. As a result, employees can usually achieve a settlement without having to pay themselves, unless lengthy negotiations are required.  It may come to light when the employee obtains legal advice that his claims are worth more than what is being offered by the employee and that there is room for negotiation.

What happens if we end up at tribunal?

Compromise agreements are usually marked ‘without prejudice’. This means that the document cannot be used in evidence at a tribunal. Compromise agreements are used as an attempt to settle the dispute without resorting to the tribunal. It would not assist negotiations if the employee could later show documents to the tribunal that the employer was willing to pay more prior to tribunal proceedings. Marking a document without prejudice or holding without prejudice discussions promotes negotiations between the employer and employee as each party knows that an offer of settlement or an admission of liability cannot be used against them later during litigation in the tribunal.

Essentially if attempts to settle fail, and the claim is taken to a tribunal, an offer that was made without prejudice does not prejudice the claim.  However, if the compromise agreement has been signed and executed, the employee will not be able to bring any claims against the employer.