The Posted Workers (Enforcement of Employment Rights) Regulations 2016

Restrictions on contracting out

9.—(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 these Regulations, or

(b) to preclude a person from bringing proceedings under these Regulations before an employment tribunal.

(2) Paragraph (1) does not apply to—

(a) any 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(1) (conciliation); or

(b) any agreement to refrain from instituting or continuing proceedings if the conditions regulating settlement agreements under these Regulations are satisfied in relation to the agreement.

(3) For the purposes of paragraph (2)(b) the conditions regulating settlement agreements under these Regulations are that—

(a) the agreement must be in writing;

(b) the agreement must relate to the particular complaint;

(c) the worker 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 the ability of the worker to pursue the worker’s 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 worker 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 these Regulations are satisfied.

(4) For the purposes of paragraph (3)(c) a “relevant independent adviser” is a person who is any of the following—

(a) a qualified lawyer;

(b) 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) an advice centre worker (including a volunteer) who has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre,

but this is subject to paragraph (5).

(5) A person is not a relevant independent adviser for the purposes of paragraph (3)(c) in relation to the worker in any of the following cases—

(a) if the person is, is employed by, or is acting in the matter for, the employer or an associated employer;

(b) in the case of a person within paragraph (4)(b) or (c), if the trade union or advice centre is the employer or an associated employer;

(c) in the case of a person within paragraph (4)(c), if the worker makes a payment for the advice received.

(6) In paragraph (4)(a) “qualified lawyer” means any of the following—

(a) as respects England and Wales a person who, for the purposes of the Legal Services Act 2007(2), 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.

(7) In paragraph (4)(b) “independent trade union” means a trade union (within the meaning given by section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992(3)) which—

(a) is not under the domination or control of an employer or a group of employers or of one or more employers’ associations, and

(b) is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatever) tending towards such control.

(8) For the purposes of paragraph (5) any two employers are “associated” if—

(a) one is a company of which the other (directly or indirectly) has control; or

(b) both are companies of which a third person (directly or indirectly) has control.

(1)

Sections 18A and 18B were inserted by the Enterprise and Regulatory Reform Act, section 7(1). Section 18C was inserted by the Enterprise and Regulatory Reform Act, section 7(2), Schedule 1, paragraphs 2 and 6.

(2)

2007 c.29.

(3)

1992 c.52.