November 05, 2010
Experts have warned that current changes enforced under the Equality Act could halt the use of compromise agreements in the workplace. Section 147 of the Equality Act, which came in to force this October, details the requirements needed to have a qualifying compromise contract. One of these is that the complainant must receive advice from an "independent adviser". However, this means that a solicitor who was instructed by the employee prior to the production of the final agreement will be unable to act any further on their behalf. "A solicitor who was instructed by the employee prior to the production of the final contract for consideration; or who has acted in any way for the employee during the course of his complaint - even in a supporting role to the lead adviser perhaps as holiday cover - will be precluded from acting any further as an independent legal adviser in that compromise contract," read a statement released by the Law Society in response to the issue. Any lawyer consulted by the employee might be said to be acting for them, this leads to the “absurd conclusion” that no lawyer validly counts as an independent adviser, said one expert. Once a lawyer advises an employee, they will be “acting for” the employee and no longer independent. According to the guidance issued by The Law Society, "The effect of this is that there is no way in which compromise agreements under the Equality Act can be made enforceable." The Law Society has requested a meeting with the Government Equalities Office to consider how this question can be resolved and has notified the Home Secretary of its concerns. A resolution is expected shortly.