Mutually Agreed Resignation Scheme (MARS) Introduction In the coming years the NHS in England faces financial challenges to do more with less. This document outlines a Mutually Agreed Resignation Scheme (MARS) which has been developed as a tool for organisations to help them meet some of these challenges including management cost and workforce reductions, service redesign and other efficiency needs. This document outlines the eligibility, scope and financial considerations of the scheme, including an application form for anyone who may be interested. The national scheme has been developed in partnership with the Social Partnership Forum, and has been discussed locally with staff side representatives. The MARS for IOW NHS PCT reflects the national scheme that has been developed with the national Social Partnership Forum. The scheme is for a limited period, running until the end of October 2010. The scheme has been agreed by the PCT Board and endorsed by South Central Strategic Health Authority. During the period of the scheme no other MARS scheme will be operated. In summary the payment rate under this scheme is fixed at ½ month s salary for each full year of service, up to a cap of 12 months salary, with a minimum payment of 3 months salary for 1 5 years reckonable service. The following document(s) outline the scheme for IOW NHS PCT.
Mutually Agreed Resignation Scheme (MARS) Isle of Wight NHS PCT 1. Introduction 1.1 The Mutually Agreed Resignation Scheme (MARS) has been designed to support the flexibility of the organisation to address periods of rapid change and service redesign. 1.2 The purpose of the MARS is to create job vacancies which can be filled by redeployment of staff from other jobs or as suitable alternative for those facing redundancy. 2. Definition 2.1 MARS is a scheme under which an individual employee, in agreement with their employer, chooses to leave employment in return for a severance payment. A Mutually Agreed Resignation (MAR) is not a redundancy or a voluntary redundancy, which would currently be covered by Section 16 of the NHS terms and conditions of service handbook. 3. Business Case 3.1 Any application under MARS must demonstrate that the departure of an employee on voluntary terms would be in the financial and operational interests of the organisation. 3.2 The business case to leave under MARS will need to demonstrate: a) why the severance payment is in the public interest; b) why it represents value for money; c) how it represents the best use of public funds: d) that it will not affect the organisation s financial targets. 4. Eligibility 4.1 Any substantive member of staff, which includes those on fixed term contracts, employed by Isle of Wight NHS PCT is eligible to apply for a Mutually Agreed Resignation. 4.2 Line Managers, in conjunction with General Managers / Heads of Clinical Service will need to review: Does the application create a job vacancy which can be filled by redeployment of staff from other jobs, or as a suitable alternative for those facing redundancy? Is the severance payment in the public interest? Why does it represent value for money? Is the payment the best use of public funds? Would the severance affect the organisation s financial targets? 4.3 An application form will be provided for the employee to express their interest, and a section is included for the points in section 4.2 to be considered. 4.4 All applications will be reviewed by the Associate Director, or equivalent. A space is included on the application form for their comments to be included. An indication will be given if the application is supported or not. An application can be withdrawn by the employee at any point before the Compromise Agreement has been signed. 4.5 All applications will be forwarded to the Director of Human Resources and Organisational Development for collation. Prior to any outcome for any application
being communicated there will be an executive review panel, which will include the Director of Finance, Director of HR & OD and the Chief Operating Officer as a minimum. 4.6 No application will be confirmed until approved by the SHA. 4.7 Each application made in accordance with MARS will be considered on its own merits. The organisation reserves the right to determine whether or not an application will be approved and there will be no right of appeal on the part of those employees whose applications are not successful. 4.8 The MARS for NHS IOW PCT will, in line with the national scheme, be time limited from mid-september 2010 to the end of October 2010. 4.9 MARS is entirely voluntary from the employer s and employee s perspective and there is no legal obligation on the part of IOW NHS PCT to accept any individual application. 4.10 A MAR is viewed as being a voluntary resignation on the part of the individual employee, in return for a severance payment. As there may be significant financial and life-style implications for the employee, and IOW NHS PCT will support the decision making process by assisting individuals with understanding these implications (see Annex B). Employees may wish to augment this by seeking advice from a regulated financial advisor. 4.11 Any employee accepted for the MARS will leave employment through a compromise agreement. 4.12 Employees in any of the following groups are not eligible to apply for a MAR: Where an employee has already formally given notice of their intention to resign/retire, prior to the date when applications are being sought; Where an employee has already secured employment with another employer; An employee has been notified of the date of the termination of their contract of employment for any other reason; An employee is undergoing a performance management procedure to address poor performance; An employee is undergoing a conduct procedure; Employees who are currently in a selection pool identifying them for potential redundancy. 4.13 Pay will be calculated as at last day of service. Basic pay will include any pay protection, in place through organisational change, that is in effect on the last day of service. 5. Re-employment 5.1 Employees who leave the NHS under MARS would not be re-employed under normal circumstances by the NHS in England, in the same or different post, before a period of one month has elapsed. If an individual does return to the NHS within one month they would be required to repay any MARS payment in full. 5.2 Where an employee returns to work for the NHS in England within six months and before the expiry date of the period for which they have been compensated (as measured in equivalent months/part months salary), then an employee would be required to repay any un-expired element of their compensation. This would be reduced to take account of any appointment to a lower grade and reflect net salary.
6. Compromise Agreement 6.1 Employees who decide to proceed with a MAR will be issued with a Compromise Agreement to sign, which will set out the financial and other terms under which the employment relationship will end. 6.2 Independent legal advice will need to be obtained by the employee before signing the Compromise Agreement. IOW NHS PCT will contribute up to a maximum of 400.00 inclusive of VAT towards the cost of this legal advice. Payment will be made by submission of an expenses claim which will include a receipt, or by invoice direct from the independent legal advisor. 6.3 A template for the compromise agreement is set out at Annex D 7 Payment rate 7.1 MARS payments will be calculated using the model below: Reckonable Service (complete years) Scale of Payment 1 year s continuous service (organisation/nhs) 3 months basic salary 2year s continuous service (organisation/nhs) 3 months basic salary 3 year s continuous service (organisation/nhs) 3 months basic salary 4 year s continuous service (organisation/nhs) 3 months basic salary 5 year s continuous service (organisation/nhs) 3 months basic salary 6 year s continuous service (organisation/nhs) 3 months basic salary 7 year s continuous service (organisation/nhs) 3.5 months basic salary 8 year s continuous service (organisation/nhs) 4 months basic salary 9 year s continuous service (organisation/nhs) 4.5 months basic salary 10 year s continuous service (organisation/nhs) 5 months basic salary 11 year s continuous service (organisation/nhs) 5.5 months basic salary 12 year s continuous service (organisation/nhs) 6 months basic salary 13 year s continuous service (organisation/nhs) 6.5 months basic salary 14 year s continuous service (organisation/nhs) 7 months basic salary 15 year s continuous service (organisation/nhs) 7.5 months basic salary 16 year s continuous service (organisation/nhs) 8 months basic salary 17 year s continuous service (organisation/nhs) 8.5 months basic salary 18 year s continuous service (organisation/nhs) 9 months basic salary 19 year s continuous service (organisation/nhs) 9.5 months basic salary 20 year s continuous service (organisation/nhs) 10 months basic salary 21 year s continuous service (organisation/nhs) 10.5 months basic salary 22 year s continuous service (organisation/nhs) 11 months basic salary 23 year s continuous service (organisation/nhs) 11.5 months basic salary 24 year s continuous service (organisation/nhs) 12 months basic salary 8. Reckonable Service 8.1 Reckonable Service means continuous service full time or part time employment with present or any previous NHS employer where there has been a break of service of 12 months or less, as at the time of leaving. Employment that has been taken into account for the purposes of a previous redundancy or loss of office payment by an NHS employer, will not count as reckonable service.
8.2 IOW NHS PCT will use the data held on ESR and Personal Files to validate the reckonable service for employees. Where an employee disputes this they must provide documentation which supports any dispute that they may have. 8.3 Any severance payment made will be offset against any subsequent payment made for the purposes of any future calculation of redundancy payments in subsequent employment. This would apply where the period of employment covered by the severance payment is taken into account in calculating the redundancy payment. 8.4 The severance payment would be subject to having not secured another job in the NHS at the time of leaving. 8.5 An employee accepting a MARS severance payment and resigning from the organisation may find alternative employment elsewhere in the NHS subject to the conditions set out in section 5 above. In the event that any future NHS employer intends to make the employee redundant, the employer will be notified of this provision of MARS. This will be a condition within the Compromise Agreement. 8.6 The employee s proposed leaving date will be subject to negotiation and mutual agreement between the employee and IOW NHS PCT. 9. Pensions 9.1 Staff whose application under MARS is accepted, and who have reached their normal pensionable retirement age, will also be eligible to claim their NHS pension benefits. This will not involve the organisation in incurring additional costs related to the payment of pension benefits. For members of the 1995 Section of the NHS Pension Scheme, normal retirement age is 60 (55 for members of the special classes ). For members of the 2008 Section of the NHS Pension Scheme, normal pension age is 65. 9.2 Staff whose application under MARS is accepted and who have reached their minimum pension age, may also apply for Voluntary Early Retirement with reduced pension benefits. For members of the 1995 Section of the NHS Pension Scheme, minimum pension age is 50 for most but 55 for some members who joined or returned on or after 6 April 2006. For members of the 2008 Section of the NHS Pension Scheme, minimum pension age is 55. 9.3 Anyone seeking payment of such benefits should seek advice from the local Pensions office. It cannot be guaranteed that the timing of pension payments will be in line with any MARS payments and applications for pension benefits will need to be made in the normal manner through the Pensions office. 9.4 Further information about the NHS Pension Scheme is available at www.nhsbsa.nhs.uk/pensions 10. Application procedure 10.1 The application procedure is set out at Annex A 10.2 The application form is set out at Annex C 10.3 A template Compromise Agreement is set out at Annex D 11. Equality Statement All applications will be considered equally, with no employee receiving any less favourable treatment on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation, or on the grounds of trade union membership.
Annex A. Application procedure for MARS 1. Employees who wish to apply for a Mutually Agreed Release (MAR) should discuss their case with their line manager in the first instance. Informal discussions will be confidential and not make a binding commitment on either party. The Human Resources (HR) team will also be available to provide advice on the scheme. 2. Applications should be made using the form at Annex C. An application can be withdrawn by the employee at any point before the Compromise Agreement has been signed. 3. The form will need to be signed by the line manager / Head of Clinical Service prior to review and signature by the Associate Director, or equivalent. 4. Once signed the form should be forwarded to the Director of Human Resources & Organisational Development. 5. Receipt of the form will be by acknowledgement within 5 days of the day of receipt. 6. Applications must be submitted before the closing date of the scheme. The scheme will close on a notified date and only forms received by the Director of Human Resources & Organisational Development by this date will be considered. 7. Once an application is submitted it will be dealt with in strict confidence by all those involved in the process. 8. The Director of Human Resources & Organisational Development will arrange for an Executive Review of applications received. As a minimum this review will consist of the Director of Human Resources & Organisational Development, Director of Finance and the Chief Operating Officer. This panel will make the final decision on whether to accept or reject an application. 9. Only once the Strategic Health Authority has reviewed and agreed the decision of the Executive Review will the outcome be notified. 10. Where the Executive Review approves an application the Director of Human Resources & Organisational Development will write to the member of staff confirming that the application has been approved, confirming the MARS payment, and that a mutually agreed leaving date is to be agreed and requesting their acceptance or rejection of the offer within 10 working days. The leaving date will be agreed in conjunction with the line manager and the employee. 11. Where the Executive Review does not approve an application the Director of Human Resources & Organisational Development will write to the member of staff advising that the application has not been successful and why it has not been possible to approve the application. 12. Each application made in accordance with MARS will be considered on its own merits. The organisation reserves the right to determine whether or not an application will be approved and there will be no right of appeal on the part of those employees whose applications are not successful.
Mutually Agreed Resignation Scheme supporting staff Annex B 1. When considering applying for voluntary severance under the Mutually Agreed Resignation Scheme (MARS), employees will need to understand the consequences of their decision. 2. Where an employee is considering a MAR they may wish to consider the information available to them at the following websites: NHS Pensions: www.nhsbsa.nhs.uk/pensions BenefitsWebsite: www.direct.gov.uk/en/moneytaxandbenefits/index.htm Citizens Advice Bureau: http://www.adviceguide.org.uk 3. Employers are not legally authorised under the Financial Services Act to give pensions or other financial advice to individuals. Therefore, employees should be encouraged to seek further independent advice. The following websites may be of assistance. IFA Promotion: www.unbiased.co.uk The Personal Finance Society: www.thepfs.org Money made clear: www.moneymadeclear.fsa.gov.uk 4. Wherever possible the Education & Development Department will assist employees to secure places on pre-retirement programmes. 5. Where staff are wanting to discuss, and consider what an application might mean to them the they might want to consider accessing the confidential counselling service available through Occupational Health, 6. HR staff are available to provide further details on the MARS should employees want to discuss these.
Mutually Agreed Resignation Scheme (MARS) Application Form Annex C For completion by the employee. Department / Directorate Full Name Post Title Date of Birth Assignment No. NHS Start Date Band / Grade NI Number IOW Start Date Annual Salary (at last day of service - see para 4.13 of scheme) Contact Email Details Phone Address I wish to apply for the Mutually Agreed Resignation Scheme. I understand that the information above will be validated and the outcome of my application will be communicated to me in writing. Signed Dated: Once completed by the employee and signed this form should be passed to the line manager. The line manager should arrange to meet with the Associate Director to review the application and complete the following section, Details required of how recurrent cost savings can be made through skill mix / redeployment: 1. Why is the employee being considered for voluntary severance? 2. Savings to be delivered as a result of agreeing a MARS payment?
(recurrent and non-recurrent) 3. Voluntary severance costs? 4. Does this application create an opportunity for another displaced member of staff? I do / do not* support this application (delete as appropriate) Reason: Signed: Line Manager Associate Director equivalent) (or Date: Date: Please forward completed form to the Director of HR & OD Date Received Date acknowledged Date of Executive Review
Executive Review comments This application has / has not been approved: Director of HR & OD Director of Finance Chief Operating Officer For completion by Human Resources Basic annual salary Organisation start date NHS start date Number of reckonable years MARS payment calculation Agreed Leaving date Number of completed years Scale of Payment Payment value Calculation completed by: Sign/date: Compromise Agreement issued Compromise Agreement returned Independent legal advice funded Leavers form raised Expense claim / invoice Value (inc VAT)
Mutually Agreed Resignation Scheme (MARS) Compromise Agreement Template Annex D Without prejudice Subject to contract Dated 2010 Between [INSERT NAME OF TRUST] and [INSERT NAME OF EMPLOYEE] Compromise Agreement
THIS AGREEMENT is made the day of 2010 BETWEEN (1) [Insert name of Trust] ( the Trust ) of [insert address] AND (2) [Insert Employee s name] ( the Employee ) of [insert address] WHEREAS A. The Employee is employed by the Trust as a [insert job title] under a contract of employment dated [insert date of contract]. B. The Employees reckonable service under the contract of employment commenced on [insert date]. C. The parties have entered into this Agreement under the Mutually Agreed Resignation Scheme ( MARS ) to record and implement the terms on which they have agreed to settle any claims against the Trust which the Employee has or may have in connection with his employment whether or not those claims are, or could be, in the contemplation of the parties at the time of signing this Agreement, and including, in particular, any complaints set out in this Agreement. D. The parties intend this Agreement to be an effective waiver of any such claims and to satisfy the conditions in relation to compromise agreements in the relevant legislation. E. The Trust enters into this Agreement considering it an effective, efficient and economical exercise of its functions under Part 2, Chapter 3 of the National Health Service Act 2006. IT IS AGREED as follows: 1 The Employee's employment with the Trust will terminate on [date] (the "Termination Date"). 2 The Employee will be paid his salary and contractual benefits up to and including the Termination Date, and the Trust will either make a payment to the Employee in lieu of holiday entitlement accrued but unused before the Termination Date or a deduction from the Employee's final salary payment in respect of any holiday that he has taken in excess of his entitlement. Any payments made under this clause will be subject to normal deductions for tax and national insurance purposes. 3 The Employee shall submit his expenses claims in the usual way on or before the Termination Date and the Trust will reimburse the Employee for any expenses properly incurred prior to the Termination Date in the usual way. Termination payment 4 Without admission of liability and on condition that the Employee does not commence any proceedings in any court, tribunal or otherwise in any jurisdiction against the Trust or any employee, officer or agent of the Trust, in respect of any claim waived by clause 7 below, and in reliance on the Employee s warranties in this Agreement, the Trust (having issued the Employee s P45) will pay to the Employee within 28 days of the later of the date that this Agreement is signed and dated by all the parties and the Relevant Independent Adviser s Certificate has been received by the Trust and the Termination Date, the following:
4.1 [ ] as compensation for loss of employment payable under MARS (the "Termination Payment"); Tax indemnity 5 Save, for the avoidance of any doubt, where the Trust has already deducted tax and national insurance from the Termination Payment or any other payment or benefit under this Agreement, the Employee will be responsible for the payment of any tax and employee national insurance contributions, interest and/or penalties referable to any payment or the provision of benefits set out in this Agreement (such income tax, employee national insurance contributions, interest and/or penalties referred to in this agreement as the Excess Tax ). The Employee hereby agrees to indemnify the Trust on a continuing basis against any Excess Tax (save that the Trust shall remain liable for any interest and/or penalties directly caused by the Trust s actions or inaction in dealing with such a claim). If the Trust becomes aware that any Excess Tax liabilities may arise it will provide relevant details to the Employee so that he is given a reasonable opportunity at his own expense to dispute any such payment with HM Revenue & Customs or other relevant authority before any Excess Tax is paid by the Trust. Waiver of claims 6 The Employee agrees to accept the Termination Payment and any other payment or benefit under this Agreement in full and final settlement of all or any claims, costs, expenses or rights of action of any kind whatsoever or howsoever arising whether known or unknown to the parties and whether or not they are or could be in the contemplation of the parties at the signature of this Agreement including any claims, costs, expenses or rights of action of any kind which as a matter of law do not at the date of this Agreement exist and whose existence cannot currently be foreseen, whether arising under common law, statute or otherwise and whether arising in the UK or any other country in the world, including but not limited to any claim: 6.1 for any period of notice, bonus, accrued holiday pay, damages for breach of contract and any other payments due as compensation for loss of employment; 6.2 for unfair dismissal; 6.3 for a redundancy payment; 6.4 alleging discrimination on the grounds of sex and/or sexual orientation (including harassment and victimisation); 6.5 alleging discrimination on the grounds of race (including harassment and victimisation); 6.6 alleging discrimination on the grounds of disability (including harassment and victimisation); 6.7 alleging discrimination on the grounds of religion or belief (including harassment and victimisation); 6.8 alleging discrimination on the grounds of age (including harassment and victimisation); 6.9 under the Employment Rights Act 1996 or earlier enactment for non-payment of wages; 6.10 under the Working Time Regulations 1998;
6.11 pursuant to the National Minimum Wage Act 1998; 6.12 in relation to the obligations to elect appropriate representatives or inform and consult or any entitlement to a protective award, under the Trade Union and Labour Relations (Consolidation) Act 1992; 6.13 under the Equal Pay Act 1970; 6.14 in respect of a detriment or dismissal under the Employment Rights Act 1996 on the grounds of making a protected disclosure under the Public Interest Disclosure Act 1998; 6.15 in respect of which a Conciliation Officer may act or any claims arising under any directive or other legislation applicable in the UK by virtue of the UK s membership of the European Union; 6.16 under the Employment Act 2002; 6.17 under the Employment Relations Act 1999; 6.18 under the Transnational Information and Consultation of Employees Regulations 1999; 6.19 under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2002; 6.20 under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002; 6.21 under the Information and Consultation of Employees Regulations 2004; 6.22 in civil proceedings under section 3 of the Protection from Harassment Act 1997 ( the Act ) including for the avoidance of doubt any claims that the Trust is vicariously liable for an actual or apprehended breach by a person under section 1 of the Act; 6.23 for compensation for personal injury arising out of any claim for discrimination of any kind; 7.24 under the Equality Act 2010 which the Employee has or may have against the Trust or any employee or officer former employee or officer of the Trust and whether arising directly or indirectly out of or in connection with his employment with the Trust its termination or otherwise save in respect of either accrued pension rights or a claim for damages for personal injury or any claim in respect of breach by the Trust of the terms of this Agreement. The Employee represents and warrants that he is unaware of any claim for personal injury which he has, or may have, against the Trust. 7 The Employee warrants that the claims and prospective claims listed at clause 7 above are all the claims or prospective claims that the Employee believes that he has against the Trust or any employee or officer, or former employee or officer, of the Trust arising out of the Employee s employment or its termination. The Employee confirms that he enters into this warranty having taken legal advice on the claims and potential claims he may have and the Employee agrees to indemnify the Trust for any claims, liabilities, losses or costs it may incur in the event that this warranty is breached.
Confidentiality 8 The Employee undertakes to keep confidential all confidential information and know how that the Trust may have disclosed to the Employee, whether orally, in writing or digitally which includes but is not limited to data, financial information, financial projections, financial records, spreadsheets, computer software, patient information and any information which has been given to the Trust in confidence and any other information which the Employee is told is confidential which the Employee has obtained about the Trust or its patients or its employees and its officers during the currency of the Employee s employment, however obtained, and whether held on document, computer disc, tape or otherwise and not to publish that information to any third party without the prior written consent of the Trust. 9 The Employee shall comply with the terms of MARS, in particular the obligation to inform a future NHS employer of the fact and terms of this agreement. Non disparagement 10 Employee undertakes that he will not, whether directly or indirectly, make public or otherwise communicate any disparaging or derogatory statements, whether in writing or otherwise, concerning the Trust or any of its officers or employees. For the avoidance of doubt, this includes any statement made or communicated electronically or via the internet, including any statements posted on any social networking sites or blogs. Warranties and representations 11 The Employee warrants and represents to the Trust that up to and including the date of this Agreement, the Employee: 11.1 has not committed any breach of any material duty owed to the Trust; 11.2 has not done or failed to do anything amounting to a repudiatory breach of the express or implied terms of his employment with the Trust which, if it had been done or omitted after the execution of this Agreement, would have been in breach of any of its terms; 11.3 is not aware of any circumstances relating to the Employee s acts or omissions or any director, officer, employee or agent of the Trust which if disclosed to the Trust would or might affect its decision to enter into this Agreement; 11.4 has not become employed and has not agreed to accept nor received any offer of employment or new engagement. 12 Any payment to the Employee pursuant to clause 4 above is conditional on the matters set out in clause 12 being so. Return of property 13 The Employee confirms that he will return to the Trust all documents, property, equipment, records, correspondence, files and other information (whether originals or copies) belonging to the Trust on or before the Termination Date. The Employee undertakes to return immediately to the Trust any such documents, property, equipment, records, correspondence, files or other information that may, after the date of this Agreement come into his possession, custody or control. The Employee warrants that he will not retain any copies and that any information which belongs or may belong to the Trust and which is stored on any personal computer or other electronic equipment belonging to the Employee
or to which the Employee has access (other than that which is stored on any Trust personal computer or other Trust electronic equipment) has been permanently deleted. Assisting litigation 14 The Employee agrees that he will, if called upon by the Trust, provide assistance in any threatened or actual litigation in which the Trust may be involved where the Employee has in his possession or knowledge any facts or matters which the Trust reasonably considers to be relevant to such litigation, including, but not limited to, giving statements/affidavits, meeting legal advisers and attending any legal hearing to give evidence. The Trust will meet any reasonable costs and expenses incurred by the Employee in giving such assistance. Independent advice 15 The Employee warrants that: 15.1 he has received independent advice from [name of advisor] of [name of firm or union] who is a relevant independent advisor within the meaning of section 203 of the Employment Rights Act 1996 (the Relevant Independent Advisor ) as to the terms and effect of this Agreement and, in particular, its effect on the Employee s ability to pursue his rights before an Employment Tribunal; and 15.2 before receiving the advice the Employee disclosed to the Relevant Independent Adviser all facts or circumstances that may give rise to a claim against the Trust, its officers or employees and that the Employee warrants that he is not aware of any other facts or circumstances that may give rise to any claim against the Trust or its officers or employees other than those claims specified in clause 7; and 15.3 he has been advised by the Relevant Independent Advisor that there is in force and was at the time the Employee received the advice referred to above a policy of insurance covering the risk of a claim by the Employee in respect of loss arising in consequence of that advice. 16 The Employee acknowledges that the Trust acts in reliance on the warranties at clause 17 when entering into this Agreement. 17 The Employee acknowledges that he is responsible for ensuring that the Relevant Independent Adviser provides to the Trust a certificate in the form set out at Appendix 1 (the Relevant Independent Adviser s Certificate ) and that the terms at clause 4 are subject to receipt of the Relevant Independent Adviser s Certificate. 18 On receipt of a copy invoice addressed to the Employee and expressed to be payable by the Trust, the Trust shall pay directly to the Employee s Relevant Independent Adviser the sum of [400] inclusive of VAT as a contribution to the Employee s legal costs incurred exclusively in connection with advice on this Agreement Clawback (Repayment) 19 The Termination Payment has been calculated as a sum equivalent to [number of months compensated] months basic salary. The Employee acknowledges that if he were to return to work for the NHS in England within 6 months of the Termination Date and before the expiry period of [number of months compensated] months, then the Employee will be required to repay to the Trust the appropriate proportion of the Termination Payment. The method for calculating the amount of the sum to be repaid is as illustrated in Appendix 2. Use of Data
20 The Employee acknowledges and agrees that data about the Termination Payment will be submitted to the [NAME] Strategic Health Authority and to the Department of Health. The Employee agrees that this personal data can be used to track whether he re-enters employment with an NHS organisation within 6 months of the Termination Date. Recovery of sums 21 If the Employee materially breaches any term of this Agreement or pursues any claim or claims mentioned at clause 7 above against the Trust, the Trust shall be entitled in its complete discretion either: 21.1 to set off against any consequential award of damages, compensation, costs or interest all sums paid to the Employee pursuant to this Agreement and the Employee agrees that it would not be just or equitable for him to recover any further compensation; or 21.2 require the Employee to repay from the Termination Payment, the lesser of: 21.2.1 the amount claimed by the Employee in the proceedings (or where no amount is specified, the maximum amount of compensation which could be awarded in respect of those proceedings) and; 21.2.2 the Termination Payment; and this shall be recoverable by the Trust as a debt immediately payable. Effect of the Termination Payment on any future redundancy payment 22 If the Employee becomes entitled to a redundancy payment in respect of any period of NHS employment, the Termination Payment will be offset against any future redundancy payment where the period of employment used to calculate the Termination Payment is taken into account in calculating the future redundancy payment. 23 The Employee undertakes to inform any future NHS employer that he has received the Termination Payment and acknowledges that any overpayment of a future redundancy payment will be recoverable. Compliance with statute 24 The Trust and Employee acknowledge that the conditions relating to compromise agreements under section 77(4A) of the Sex Discrimination Act 1975 (in relation to claims under that Act and the Equal Pay Act 1970), section 72(4A) of the Race Relations Act 1976, section 288(2B) of the Trade Union and Labour Relations (Consolidation) Act 1992, paragraph 2 of schedule 3A of the Disability Discrimination Act 1995, section 203(3) of the Employment Rights Act 1996, regulation 35(3) of the Working Time Regulations 1998, section 49(4) of the National Minimum Wage Act 1998, regulation 41(4) of the Transnational Information and Consultation etc. Regulations 1999, regulation 9 of the Part- Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, regulation 10 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, paragraph 2(2) of schedule 4 of the Employment Equality (Sexual Orientation) Regulations 2003, paragraph 2(2) of schedule 4 of the Employment Equality (Religion or Belief) Regulations 2003, regulation 40(4) of the Information and Consultation of Employees Regulations 2004, paragraph 12 of the schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006, paragraph 2(2) of schedule 5 of the Employment Equality (Age)
Jurisdiction Regulations 2006 and regulation 18 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 are intended to be and have been satisfied. 25 This Agreement shall be governed by and interpreted according to the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts. Whole agreement 26 This Agreement sets out the entire agreement between the parties and supersedes all prior discussions between them or their advisers and all statements, representations, terms and conditions, warranties, guarantees, proposals, communications and understandings whenever given and whether orally or in writing. Interpretation 27 Headings to clauses are for convenience only and have no legal effect. 28 Notwithstanding that this Agreement is marked without prejudice and subject to contract it will, when signed and dated by all parties below including the Relevant Independent Adviser, become an open and binding document capable of being relied on by all parties. 29 Where the context admits, references to any statute or provision of a statute shall be construed as references to the statute or the provisions as amended, modified, considered or re-enacted and to any subordinate legislation made from time to time under that provision. 30 This Agreement has been entered into on the date stated at the beginning of it. 31 The Appendices to this Agreement form part of (and are incorporated into) this Agreement. This Agreement may be executed in any number of counterparts, each of which, when executed, shall be an original, and all the counterparts together shall constitute one and the same instrument.
The Trust: SIGNED: DATED: The Employee: SIGNED: DATED:
APPENDIX 1 To be typed on letterhead of [insert name of Relevant Independent Adviser] I confirm to [insert name of the Trust] (the Trust ) that:- a) I have given [insert name] the advice referred to in clause 17 of the compromise agreement between [insert name] (the Employee ) and the Trust, which has been signed and dated by the Employee on [insert date]; b) I am a relevant independent advisor as defined by section 203 of the Employment Rights Act 1996; and c) there is in force a policy of insurance covering the risk of a claim by the Employee in respect of any loss arising in consequence of that advice. NAME: SIGNED: DATED:
APPENDIX 2 Clawback of sums paid under MARS Where an employee returns to work in England within 6 months and before the expiry date of the period for which they have been compensated (as measured in equivalent months / part-months salary), then an employee would be required to repay any un-expired element of their compensation. This will be reduced to take account of any appointment to a lower grade and reflect net salary. The compromise agreement should specify the requirement to repay monies in such circumstances and may provide for a period of repayment. Worked Example 1 An employee leaving under a mutually agreed resignation scheme ( MARS ) is paid basic salary of 60,000 per annum ( 5,000 per month). They have 24 years of reckonable service (so qualify for a payment of 12 months basic salary), which gives them a Gross total payment of 60,000 ( 5,000 x 12). After allowing for tax their Net payment is 48,000. After three months they return to the NHS in a new job that pays 2,500 a month net of tax. They are therefore required to repay the unexpired element of their compensation (this is the number of months payment they received (12 months) minus the number of months where they were not working for the NHS (3 months)). This repayment is adjusted to reflect the employees new salary and is therefore 2,500 x 9, giving them a total net repayment requirement of 22,500. Worked Example 2 An employee leaving under MARS is paid 60,000 per annum ( 5,000 a month). They have 8 years of reckonable service, which means that they receive a total payment of 20,000 (four months pay). After four months they return to the NHS in a new job and are not required to repay any of the money they received as part of their MARS payment. This is because the unexpired element of their compensation that they are required to repay (the number of months payment they received minus the number of months where they were not working for the NHS) is 0, as they received a four months MARS payment and they were out of the NHS for four months. Note: In all instances, any employee returning employment in the NHS after 6 months is not required to repay the money they received under MARS.