PRECEDENT SETTLEMENT AGREEMENT
This Agreement made on [DATE]
Between:
[insert Company’s name and Registered Office
(hereinafter called “the Company”) ]
and
[insert Employee’s name and address
(hereinafter called “the Employee”)]
The parties agree to resolve their difference on the following basis:-
1.
TERMINATION
[The Employee agrees to withdraw his/her claim under the Unfair Dismissals Acts,
1977 to 2007, [AND ANY OTHER ACTS] and agrees to have the proceedings entitled
[TITLE] bearing the record number [NUMBER] struck out with no Order as to costs.]
The Employee agrees to resign as an employee of the Company with effect from close
of business on [DATE], (the “Termination Date”).
2.
BENEFITS
Subject to the terms and conditions of this Agreement, [within 14 days of the date
hereof/on the Termination Date], the Company shall pay to the Employee a sum of
€[AMOUNT], “the “Settlement Sum”). The Settlement Sum will be paid in a tax
efficient manner. Any tax efficient scheme proposed by the Employee must be at no
additional cost or expense to the Company and approved by the Company’s
[auditors/tax advisors].1
Where the Company is under a legal obligation to deduct tax or other social insurance
contributions in respect of any sum due to the Employee under the terms of this
1
Section 123 of the Taxes Consolidation Act 1997 (as amended) (“the TCA”) provides that any payment made
in connection with the termination of an office or employment is subject to Irish income tax. The non-taxable
portion of a termination payment is calculated in accordance with Section 201 and Schedule 3 of the TCA and is
the higher of the following three amounts:(a) The Basic Exemption - €10,160 plus €765 for each complete year of service. Prior approval from the
Revenue is not required.
(b) The Increased Basic Exemption – Where the employee has not within the last 10 years claimed the Basic
Exemption, he or she is entitled to claim the Basic Exemption plus an additional exemption of €10,000. The
approval of the Revenue is required prior to payment being made to the Employee.
(c) Standard Capital Superannuation Benefit (“SCSB”)
Agreement such sum or sums shall only be paid to the Employee after the Employer has
deducted the appropriate tax and contributions.
3.
TAX ADVICE
Tax advice arising out of the termination of the Employee’s employment will be
payable by the Company on the Employee’s behalf up to a maximum of €[AMOUNT].
4.
REFERENCE
The Company will provide a reference to the Employee in the attached terms. Any
verbal reference given by the Company shall be consistent with the terms of the said
reference.
5.
PENSION RIGHTS
[The Employee is entitled to retain whatever pension rights as he/she is entitled to under
the terms of the applicable pension rules of the Company up to and including the
Termination Date.]
6.
LEGAL COSTS
The Company agrees to contribute [AMOUNT] in respect of the Employee’s legal
costs. Such contribution shall be paid by the Company directly to the Employees
Solicitor.2
7.
OUTSTANDING ENTITLEMENTS
Insofar as the Employee presently has, up to and including the Termination Date, any
entitlements (including any reimbursement), statutory or otherwise, arising out of
his/her employment or otherwise, such entitlements would be deemed to have been
appropriately taken, satisfied or payment made in lieu thereof, except in respect of
legitimate vouched expenses incurred up to and including the Termination Date.
8.
COMPANY PROPERTY
The Employee shall not keep any information or documents, whether stored by
electronic means or otherwise, acquired by the Employee in his/her capacity as an
employee and/or representative of the Company save, without breach of this agreement,
information and/or documents already in the public domain. The Employee undertakes
that he/she will immediately return any such documents and/or information that
subsequently come into his/her possession or procurement in the future.
9.
RETURN OF PROPERTY
The Employee shall [immediately/on the Termination Date] return all Company
property in his/her possession or procurement to the Company.
2
Solicitors legal costs can be paid tax free provided that the sum is a bona fide payment in respect of costs
incurred and provided that it is paid directly by the Company to the Employee’s solicitor. Currently no advance
revenue approval is required to make this payment.
10.
FULL AND FINAL SETTLEMENT
Subject to the due performance by the parties of the obligations herein these terms are to
be in full and final settlement of any rights and entitlements the Employee has or may
have up to and including the Termination Date against the Company (in this context, the
Company shall also mean any associated, subsidiary or related companies and/or their
respective Employees and officers) arising out of his/her employment with the
Company or the termination of such employment. Insofar as the Employee has any
entitlements in law, the Employee must agree by entering into this Agreement to waive
such rights including any rights or by virtue of the Unfair Dismissals Act, 1977 to 2007,
the Redundancy Payments Act, 1967 to 2007, the Organisation of Working Time Act,
1997, the Minimum Notice and Terms of Information Act, 1973 to 2003, the Payment
of Wages Act, 1991, the Terms of Employment (Information) Act, 1994 to 2001, the
Safety, Health and Welfare at Work Act, 2005, the Employment Equality Act, 1998 to
2007, the Protection of Employees (Part-time Work) Act, 2001, the Protection of
Employees (Fixed Term Work) Act, 2003, or any other legislation governing
employment relationships in any jurisdiction or at common law, in tort, in equity or
otherwise howsoever arising.
11.
EQUIVALENT WAIVER
The Company agrees and acknowledges that it has no claims whatsoever against the
employee arising out of or connected with his/her employment by the Company.
12.
INDEPENDENT LEGAL ADVICE
By entering into this Agreement, the Employee shall be deemed to acknowledge that
he/she does so with consent and with full knowledge of his/her rights, if any, and having
first obtained legal advice as to the full force and effect of this Agreement.
13.
FURTHER ASSURANCE
The Employee and the Company must execute all and any documents and to take such
steps as are necessary to give effect to the terms of this Agreement.
14.
CONFIDENTIALITY
The terms of this Agreement are to be kept confidential by both the Employee and the
Company and, save by compulsion of law, neither party shall disclose, either directly or
indirectly, the terms of the Agreement, or any parts thereof or the existence of the
Agreement to any party save to his/her immediate family and legal and tax advisers.
15.
COMPANY CAR
The Employee is entitled to keep the Company Car3 (the “Company Car”) that is
presently being driven by the Employee. The Company Car will be transferred to the
3
While the transfer of the Company Car to the Employee is a benefit in kind and, arguably, the tax responsibility
of the employee, the more prudent view is that where the employer is also paying money to the Employee that
Employee at its present book value. By accepting the Company Car as part of the terms
of this Agreement, the Employee shall be deemed to take same at his/her own risk and
with full knowledge as to its mechanical and physical condition. The Company accepts
no liability whatsoever for any defects in the Company Car whether apparent or
otherwise. The Employee must also accept that he/she is not a “buyer” and that the
Company is not a “seller” within the meaning of the Sales of Goods and Supply of
Services Act, 1990 and any amendment thereof. With regard to insurance, the
Company will keep the Employee insured in the Company Car until [DATE] to enable
the Employee obtain alternative insurance. The insurance cover will therefore expire at
one minute to midnight on [DATE] and it is the Employee’s responsibility to ensure
that he/she is fully insured after this time. Insofar as the Company is concerned, any
charge to tax (including benefit in kind) arising out of the transfer of the Company Car
shall be the responsibility and liability of the Employee and the Employee shall
indemnify the Company in respect of any such liability and any costs or expenses
arising therefrom.
16.
RESIGNATION OF OFFICES
The Employee agrees, without compensation, to resign all and every positions and/or
offices held by him/her by virtue of or in connection with his/her employment by the
Company including any directorships, statutory offices or trusteeships with immediate
effect and undertakes to execute all documentation necessary to give effect to such
resignations and to co-operate in this regard with the employer.
17.
NON-DISPARAGEMENT
The Employee and the Company each agree not to make, or cause to be made, any
statement or communication (whether written or oral) that disparages or reflects
negatively on the other party.
18.
TRANSFER OF OWNERSHIP
The Employee’s [e.g. mobile phone/other particular items] will be transferred to his/her
ownership on the Termination Date and the Employee will be liable for all costs
associated with its use after the Termination Date.
19.
POST-TERMINATION RESTRICTIONS
The Employee agrees that, in consideration of the payments made pursuant to this
Agreement, and in order to safeguard the trade secrets, know-how, business
information, Confidential Information and the goodwill of the Company, for the period
from the date of this Agreement to the expiration of the [6] month period after the
Termination Date, the Employee will be bound by the following restrictions:(a)
he/she will not canvass or solicit or endeavour to canvass or solicit away from the
Company the custom or business of any person, firm or company which is or was
at any time during the twelve months prior to the Termination Date a client or
customer of the Company with whom or which he/she had business dealings
the value of the car (i.e. a written valuation from a reputable dealer) should be included in the tax calculation and
the appropriate tax deducted.
during the course of his/her employment in that twelve-month period and in
relation to whose requirements he/she had knowledge of a material kind; and
(b)
he/she will not carry on, set up, engage or be directly or indirectly interested or
concerned in any business activity carried on or about to be carried on anywhere
in [Ireland] by any person, firm or Company in competition with any business or
activity in which he/she was actively involved in the course of his/her
employment with the Company in the twelve months immediately prior to the
Termination Date. This is providing that nothing contained in this provision will
prohibit his/her carrying on or being engaged, concerned or interested in any
business not directly or in direct competition with the business of the Company;
and
(c)
he/she will not entice, solicit or endeavour to entice or solicit away any person
who is employed or engaged by the Company and with whom he/she had
significant dealing or over whom he/she exercised control during the course of
his/her employment in the twelve month period prior to the Termination Date and
who by means of his or her employment or engagement is or is likely to be in
possession of Confidential Information related to the Company.
The restrictions set out in paragraphs (a) and (b) and (c) above will apply to any action
taken by the Employee, whether as agent, representative, principal, employee or
consultant or as a director or other officer of any company or by any company
controlled by the Employee or any associate of the Employee.
The Employee acknowledges and agrees that all of the restrictions described above are
reasonable and necessary in all the circumstances for the protection of the Company’s
legitimate interests. In the event that any of the restrictions is held to be unreasonable
by reason of the area, duration or type or scope of service covered by such covenant,
then effect will be given to such restriction in such reduced form as may be decided by
any court of competent jurisdiction.
20.
CONFIDENTIAL INFORMATION
The term “Confidential Information” as used in this Agreement means information that
the Employee had access to or acquired by virtue of or in connection with his/her
employment or other association with the Company, including information received
from third parties under confidential conditions and technical, business or financial
information or trade secrets or proprietary information of the Company or any of its
affiliates. The Employee understands and agrees that such Confidential Information was
disclosed to him/her in confidence and for the sole use of the Company. The Employee
understands and agrees that, from and after the date hereof, he/she will not disclose any
Confidential Information and will not make use of Confidential Information on his/her
own behalf, or on behalf of any third party unless you are required to do so by law.
21.
WHOLE AGREEMENT
This Agreement contains the whole agreement made between the Employee and the
Company relating to the matters provided for in this Agreement and supersedes all
previous agreements (if any) between such parties in respect of such matters and each of
the parties to this Agreement acknowledges that in agreeing to enter into this Agreement
it has not relied on any representations or warranties except for those contained in this
Agreement.
22.
SURVIVAL OF OBLIGATIONS
The expiration or determination of this Agreement howsoever arising shall not affect
such of the provisions hereof as are expressed to operate or have effect thereafter and
shall be without prejudice to any right of action already accrued to either party in
respect of any breach of this Agreement by the other party.
23.
HEADINGS AND CAPTIONS
The Section headings and captions to the Clauses in this Agreement are inserted for
convenience of reference only and shall not be considered a part of or affect the
construction or interpretation of this Agreement.
24.
IRISH LAW
This Agreement will be governed by and construed in accordance with Irish Law and
subject to the jurisdiction of the Courts of the Republic of Ireland.
Signed________________________
On behalf of the Company
I, [EMPLOYEE’S NAME] confirm that I have read and understand the terms of the above
Agreement, having received independent legal advice in relation to same, and having done so,
I confirm that I accept the terms of this Agreement.
Signed_____________________________
Date:
Witness____________________________
WF-127939-v1