Who counts as a relevant independent adviser
Section 203 of the Employment Rights Act 1996 (and the matching rule in the Equality Act 2010) says the adviser can be:
- a qualified lawyer, such as a solicitor, a barrister or an authorised Fellow of the Chartered Institute of Legal Executives
- an official of an independent trade union who the union has certified as competent and authorised to give the advice
- a worker at an advice centre, whether paid or a volunteer, who the centre has certified as competent and authorised to give the advice
The adviser must be independent of your employer, and must be covered by insurance or a professional indemnity for the advice they give you.
What the adviser must do
The adviser must explain the terms of the agreement and its effect, in particular that signing it stops you bringing the claims it covers in an employment tribunal. A good adviser will also check the payment and tax, the reference, confidentiality and restrictive covenants, and whether the offer is reasonable given your claims.
The agreement itself must be in writing, identify the adviser, relate to the particular complaints it settles, and state that the legal conditions have been met.
Who pays for the advice
Employers usually pay a contribution towards your advice, because they need you to get it for the agreement to work. The contribution is normally written into the agreement and paid direct to the adviser. If the advice costs more than the contribution, ask the employer to increase it before you instruct anyone.
Can my employer insist on a solicitor?
The law does not require a solicitor. But a settlement agreement is voluntary on both sides, so an employer can decline to sign one where it is not satisfied with the adviser. If you want to use an adviser who is not a solicitor, tell your employer early and agree it before the agreement is finalised, so the choice of adviser does not delay your payment.