A drafting error in the Equality Act 2010 makes enforcing compromise agreements to settle discrimination and equal pay claims impossible, the Law Society warned last week. Chancery Lane has requested an urgent meeting with the Government Equality Officer (GEO) to resolve the issue.
In order to have a qualifying compromise agreement to settle claims arising under the act, the complainant must receive advice from an ‘independent adviser’ about its terms and effect.
But Chancery Lane said that the way section 147 of the act is drafted suggests that an adviser who has been involved in the settlement before the final agreement is produced would be precluded from being ‘independent’, and could not act any further.
The GEO has said that the situation that existed before the act was passed remains unchanged, and only advisers who had acted for another party were precluded.
But counsel have advised the Law Society that the meaning of the section is clear, and a court or tribunal would construe it to mean that a solicitor who has acted in any way for the employee during the course of the complaint will be precluded from acting as an independent legal adviser on the compromise agreement.
Tom Flanagan, a partner at national firm Pinsent Masons, said the problem goes even further: ‘The section precludes even the person advising on the compromise agreement from being independent, which means it is impossible to have a compromise agreement for claims arising under the act,’ he said. ‘This is clearly circular and obviously a drafting error.’
A GEO spokesman said its legal team is aware of the Law Society’s concerns and is discussing the issue with its representatives, but does not agree with Chancery Lane’s interpretation of the act.
The Law Society has requested an urgent meeting with GEO and has notified the Home Office of its concerns.
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