Part VII

Miscellaneous and general

Contracting out, &c.

Restriction on contracting out.
288
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 employment tribunal or the Central Arbitration Committee under any provision of this Act, . . .
ii. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
Subsection (1) does not apply to an agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under— any of sections 18A to 18C of the Employment Tribunals Act 1996 (conciliation)
2A
Subsection (1) does not apply to an agreement to refrain from instituting or continuing any proceedings, other than excepted proceedings, specified in subsection (1)(b) of that section before an employment tribunal if the conditions regulating settlement agreements under this Act are satisfied in relation to the agreement.
2B
The conditions regulating settlement agreements under this Act are that—
a
the agreement must be in writing;
b
the agreement must relate to the particular proceedings;
c
the complainant must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and in particular its effect on his ability to pursue his rights 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 agreement must identify the adviser; and
f
the agreement must state that the conditions regulating settlement 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.
4
A person is a relevant independent adviser for the purposes of subsection (2B)(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,
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, or
d
if he is a person of a description specified in an order made by the Secretary of State.
4A
But a person is not a relevant independent adviser for the purposes of subsection (2B)(c) in relation to the complainant—
a
if he is, is employed by or is acting in the matter for the other party or a person who is connected with the other party,
b
in the case of a person within subsection (4)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party,
c
in the case of a person within subsection (4)(c), if the complainant makes a payment for the advice received from him, or
d
in the case of a person of a description specified in an order under subsection (4)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.
4B
In subsection (4)(a) qualified lawyer means—
a
as respects England and Wales,
a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act), 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.
4C
An order under subsection (4)(d) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
5
For the purposes of subsection (4A) 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.
6
An agreement under which the parties agree to submit a dispute to arbitration—
a
shall be regarded for the purposes of subsections (2) and (2A) as being an agreement to refrain from instituting or continuing proceedings if—
i
the dispute is covered by a scheme having effect by virtue of an order under section 212A, and
ii
the agreement is to submit it to arbitration in accordance with the scheme, but
b
shall be regarded for those purposes as neither being nor including such an agreement in any other case.
Words in s. 288 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(c) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1
Words in s. 288 substituted for paras. (a) and (b) (22.8.1996) by 1996 c. 17 ss. 43, 46, Sch. 1 para. 8(a) (with s. 38)
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
Words in s. 288(2A) substituted (22.8.1996) by 1996 c. 18, ss. 43, 46, Sch. 1 para. 8(b) (with s. 38)
Word in s. 288(2B)(b) substituted (1.8.1998) by 1998 c. 8, s. 15, Sch. 1 para. 9(2); S.I. 1998/1658, art. 2(1), Sch. 1
Words in s. 288(2B)(c) substituted (1.8.1998) by 1998 c. 8, s. 9(1)(2)(c); S.I. 1998/1658, art. 2(1), Sch. 1
Words in s. 288(2B)(d) substituted (1.8.1998) by 1998 c. 8, s. 10(1)(2)(c); S.I. 1998/1658, art. 2(1), Sch. 1
S. 288(4)(4A)(4B)(4C)(5) substituted for s. 288(4)(5) (1.8.1998) by 1998 c. 8, s. 15, Sch. 1 para. 9(3); S.I. 1998/1658, art. 2(1), Sch.
S. 288(6) inserted (1.8.1998) by 1998 c. 8, s. 8(3); S.I. 1998/1658, art. 2(1), Sch. 1 (with art. 3(4))
S. 288(1)(b)(ii) and preceding word repealed (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 57(1)(2), 59(2)-(4), Sch. 1 para. 19, Sch. 2; S.I. 2005/872, art. 4, Sch. (with arts. 6-21)
Words in s. 288(4B)(a) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208, 210, 211(2), Sch. 21 para. 107 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9)
Word in s. 288(2A)(2B) substituted (29.7.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 23(1)(a), 103(3); S.I. 2013/1648, art. 2(c)
Words in s. 288(2) substituted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 1 para. 1; S.I. 2014/253, art. 3(f) (with art. 5(1))
S. 288 applied (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), regs. 1(b), 16