Trade Union and Labour Relations (Consolidation) Act 1992

288 Restriction on contracting out. E+W+S

(1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

(a) to exclude or limit the operation of any provision of this Act, or

(b) to preclude a person from bringing—

(i) proceedings before an industrial tribunal or the Central Arbitration Committee under any provision of this Act, or

(ii) an application to the Employment Appeal Tribunal under section 67 (remedy for infringement of right not to be unjustifiably disciplined) or section 176 (compensation for unreasonable exclusion or expulsion).

(2) Subsection (1) does not apply to an agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under—

(a) section 133(2) or (3) of the M1 Employment Protection (Consolidation) Act 1978 (general provisions as to conciliation), or

(b) section 134(1), (2) or (3) of that Act (conciliation in case of unfair dismissal).

[F1 (2A) Subsection (1) does not apply to an agreement to refrain from instituting or continuing any proceedings, other than excepted proceedings, specified in section 290 before an industrial tribunal if the conditions regulating compromise agreements under this Act are satisfied in relation to the agreement.

(2B) The conditions regulating compromise agreements under this Act are that—

(a) the agreement must be in writing;

(b) the agreement must relate to the particular complaint;

(c) 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 rights before an industrial tribunal;

(d) there must be in force, when the adviser gives the advice, a policy of insurance covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice;

(e) the agreement must identify the adviser; and

(f) the agreement must state that the conditions regulating compromise agreements under this Act are satisfied.

(2C) The proceedings excepted from subsection (2A) are proceedings on a complaint of non-compliance with section 188.]

(3) Subsection (1) does not apply—

(a) to such an agreement as is referred to in section 185(5)(b) or (c) to the extent that it varies or supersedes an award under that section;

(b) to any provision in a collective agreement excluding rights under Chapter II of Part IV (procedure for handling redundancies), if an order under section 198 is in force in respect of it.

[F2 (4) In subsection (2B)—

• 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—

(a) as respects proceedings in England and Wales—

(i) a barrister, whether in practice as such or employed to give legal advice, or

(ii) a solicitor of the Supreme Court who holds a practising certificate;

(b) as respects proceedings in Scotland—

(i) an advocate, whether in practice as such or employed to give legal advice, or

(ii) a solicitor who holds a practising certificate.

(5) For the purposes of subsection (4) any two persons are to be treated as connected if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control.]

Textual Amendments

F1 S. 288(2A)-(2C) inserted (30.8.1993) by 1993 c. 19, s. 39(2), Sch. 6 para. 4(a); S.I. 1993/1908, art. 2(1), Sch.1

F2 S. 288(4)(5) inserted (30.8.1993) by 1993 c. 19, s. 39(2), Sch. 6 para. 4(b); S.I. 1993/1908, art. 2(1), Sch.1

Marginal Citations

M1 1978 c. 44.