Law Society Finds Major Flaw with Wording of the Equality Act

Legal experts have been at logger heads with the Government Equalities Office (GEO) after an alleged major flaw was discovered with the drafting of section 147 of the Equality Act. The ambiguity of the wording in the section of the Act relating to compromise agreements may make such arrangements impossible.

The Law Society are now requesting an urgent meeting with the GEO,  despite the GEO’s reassurance that the situation remains unchanged from equalities legislation preceding the Equality Act.
In a Law Society Briefing the organisation comments:-
“The way this section is currently drafted suggests that a solicitor who was instructed by the employee prior to the production of the final agreement for consideration will be precluded from acting any further.
The Government Equalities Office has stated that 'the situation that existed prior to passage of the Act' remains unchanged and, by implication, that a solicitor who had advised a client in respect of an action would also be able to provide advice on a compromise agreement.
However, we have received advice from counsel which disagrees with this view. The advice indicates that a court or tribunal would construe section 147(5)(d) as meaning that 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.
Advice from counsel also indicates that a solicitor to whom the client was referred solely for the purpose of advising on the agreement would not be able to provide such advice.
The effect of this is that there is no way in which compromise agreements under the Equality Act can be made enforceable."
Edward Goodwyn, an employment law expert at law firm Pinsent Masons, is advising companies and organisations to use to use conciliation service ACAS to settle disputes or to use 'claw back' provisions in any settlement to prevent later Equality Act claims against the terms of settlements.


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