SCHEDULE 5Validity of contracts, collective agreements and rules of undertakings
Part 1Validity and revision of contracts
2
1
Paragraph 1(3) does not apply—
a
to a contract settling a complaint to which regulation 36(1) (jurisdiction of employment tribunals) applies where the contract is made with the assistance of a conciliation officer within the meaning of section 211 of the Trade Union and Labour Relations (Consolidation) Act 199261;
b
to a contract settling a complaint to which regulation 36(1) applies if the conditions regulating compromise contracts under this Schedule are satisfied in relation to the contract; or
c
to a contract settling a claim to which regulation 39 (jurisdiction of county or sheriff courts) applies.
2
The conditions regulating compromise contracts under this Schedule are that—
a
the contract must be in writing;
b
the contract must relate to the particular complaint;
c
the complainant must have received advice from a relevant independent adviser as to the terms and effect of the proposed contract and in particular its effect on his ability to pursue a complaint before an employment tribunal;
d
there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or professional body, covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice;
e
the contract must identify the adviser; and
f
the contract must state that the conditions regulating compromise contracts under this Schedule are satisfied.
3
A person is a relevant independent adviser for the purposes of sub-paragraph (2)(c)—
a
if he is a qualified lawyer;
b
if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union; or
c
if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre.
4
But a person is not a relevant independent adviser for the purposes of sub-paragraph (2)(c) in relation to the complainant—
a
if he is employed by, or is acting in the matter for the other party, or is a person who is connected with the other party;
b
in the case of a person within sub-paragraph (3)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party; or
c
in the case of a person within sub-paragraph (3)(c), if the complainant makes a payment for the advice received from him.
5
In sub-paragraph (3)(a) “qualified lawyer” means—
a
as respects England and Wales, a barrister (whether in practice as such or employed to give legal advice), a solicitor who holds a practising certificate, or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 199062; and
b
as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.
6
A person shall be treated as being a qualified lawyer within sub-paragraph (5)(a) if he is a Fellow of the Institute of Legal Executives employed by a solicitors' practice.
7
In sub-paragraph (3)(b) “independent trade union” has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992.
8
For the purposes of sub-paragraph (4)(a) any two persons are to be treated as connected—
a
if one is a company of which the other (directly or indirectly) has control; or
b
if both are companies of which a third person (directly or indirectly) has control.
9
An agreement under which the parties agree to submit a dispute to arbitration—
a
shall be regarded for the purposes of sub-paragraphs (1)(a) and (b) as being a contract settling a complaint if—
i
the dispute is covered by a scheme having effect by virtue of an order under section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992, and
ii
the agreement is to submit it to arbitration in accordance with the scheme, but
b
shall be regarded as neither being nor including such a contract in any other case.