Part IIEmployment

Enforcement etc.

9Validity of certain agreements

1

Any term in a contract of employment or other agreement is void so far as it purports to—

a

require a person to do anything which would contravene any provision of, or made under, this Part;

b

exclude or limit the operation of any provision of this Part; or

c

prevent any person from presenting a complaint to an industrial tribunal under this Part.

2

Paragraphs (b) and (c) of subsection (1) do not apply to an agreement not to institute proceedings under section 8(1), or to an agreement not to continue such proceedings, if—

a

a conciliation officer has acted under paragraph 1 of Schedule 3 in relation to the matter; or

b

the conditions set out in subsection (3) are satisfied.

3

The conditions are that—

a

the complainant must have received independent legal advice from a qualified lawyer as to the terms and effect of the proposed agreement (and in particular its effect on his ability to pursue his complaint before an industrial tribunal);

b

when the adviser gave the advice there must have been in force a policy of insurance covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice; and

c

the agreement must be in writing, relate to the particular complaint, identify the adviser and state that the conditions are satisfied.

4

In this section—

  • “independent”, in relation to legal advice to the complainant, means that it is given by a lawyer who is not acting for the other party or for a person who is connected with that other party; and

  • “qualified lawyer” means—

    1. a

      as respects proceedings in England and Wales, a barrister (whether in practice as such or employed to give legal advice) or a solicitor of the Supreme Court who holds a practising certificate; and

    2. b

      as respects proceedings in Scotland, an advocate (whether in practice as such or employed to give legal advice) or a solicitor who holds a practising certificate.

5

For the purposes of subsection (4), any two persons are to be treated as connected if—

a

one is a company of which the other (directly or indirectly) has control, or

b

both are companies of which a third person (directly or indirectly) has control.