Restrictions on contracting out

Restrictions on contracting out105A

1

Except as provided by paragraph (2), any provision in an agreement (whether a contract of employment or not) shall be void in so far as it purports—

a

to exclude or limit the operation of any provision of this Order;

b

to preclude any person from presenting a complaint to, or bringing any proceedings under this Order before, an industrial tribunal; or

c

to preclude any person from making any reference, claim or complaint under Part V.

2

Paragraph (1) does not apply—

a

to any agreement to refrain from instituting or continuing any proceedings where the Agency has taken action in accordance with Article 62(2) or (5) of the No. 1 Order;

b

to any agreement such as is referred to in Article 43(6)(b) or (c) to the extent that it varies or supersedes an award under that Article; or

c

to any agreement to refrain from instituting or continuing any proceedings arising out of a contravention or alleged contravention of Article 29 or 34 before an industrial tribunal if the conditions regulating compromise agreements under this Order are satisfied in relation to the agreement.

3

The conditions regulating compromise agreements under this Order 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 Order are satisfied.

4

In paragraph (3)—

• “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

     a barrister, whether in practice as such or employed to give legal advice; or

  2. b

     a solicitor of the Supreme Court who holds a practising certificate.

5

For the purposes of paragraph (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.