Employment Protection (Consolidation) Act 1978

Contracting out of provisions of Act U.K.

140 Restrictions on contracting out. E+W+S

(1) Except as provided by the following provisions of this section, 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 Act; or

(b) to preclude any person from presenting a complaint to, or bringing any proceedings under this Act before, an industrial tribunal.

(2) Subsection (1) shall not apply—

(a) to any provision in a collective agreement excluding rights under section 12 if an order under section 18 is for the time being in force in respect of it;

(b)

F1 (c) to any provision in a dismissal procedures agreement excluding rights under section 54 if that provision is not to have effect unless an order under section 65 is for the time being in force in respect of it;

(d) to any agreement to refrain from presenting a complaint under section 67, where in compliance with a request under section 134(3) a conciliation officer has taken action in accordance with that subsection;

(e) to any agreement to refrain from proceeding with a complaint presented under section 67 where a conciliation officer has taken action in accordance with section 134(1) and (2);

(f) to any provision in an agreement if an order under section 96 is for the time being in force in respect of it;

[F2 (fa) to any agreement to refrain from instituting or continuing any proceedings before an industrial tribunal where the tribunal has jurisdiction in respect of the proceedings by virtue of an order under section 131;]

[F3 (fb) to any agreement to refrain from instituting or continuing any proceedings specified in section 133(1) (except (c)) or 134(1) before an industrial tribunal if the conditions regulating compromise agreements under this Act are satisfied in relation to the agree ment.]

(g) to any agreement to refrain from instituting or continuing any proceedings before an industrial tribunal where a conciliation officer has taken action in accordance with section 133(2) or (3);

(h) to any provision of an agreement relating to dismissal from employment such as is mentioned in section 142(1) or (2).

[F4 (3) 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 employee 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 employee 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.

(4) In subsection (3)—

• “independent”, in relation to legal advice to the employee, means that it is given by a lawyer who is not acting in the matter for the employer or an associated employer; 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.]

Textual Amendments

F1 S. 140(2)(b) repealed by Employment Act 1980 (c. 42, SIF 43:5), Sch. 2

F2 S. 140(2)(fa) inserted (30.8.1993) by 1993 c. 19, s. 49(2), Sch. 8 para.21; S.I. 1993/1908, art. 2(1), Sch.1

F3 S. 140(2)(fb) inserted (30.8.1993) by 1993 c. 19, s. 39(1)(a); S.I. 1993/1908, art. 2(1), Sch.1

F4 S. 140(3)(4) inserted (30.8.1993) by 1993 c. 19, s. 39(1)(b); S.I. 1993/1908, art. 2(1), Sch.1