Scottish Public Finance Manual

Settlement agreements, severance, early retirement and redundancy terms

Scope

This guidance is aimed primarily at the constituent parts of the Scottish Administration (i.e. the core Scottish Government (SG), the Crown Office and Procurator Fiscal Service, SG Executive Agencies and non-ministerial departments) and bodies sponsored by the SG. However, other organisations to which the Scottish Public Finance Manual (SPFM) is directly applicable should ensure compliance with any relevant provisions and follow procedures consistent with this guidance. See list of public bodies that come under this arrangement.

Context

The Scottish Public Finance Manual (SPFM) sets out the governance of the circumstances in which an employee may be offered settlement, severance, early retirement (in the context of an exit scheme) or redundancy arrangement as above. 

While NHS and Educational bodies must comply with the SPFM, they will have their own business case reporting procedures which mirrors the SPFM.

Content

1. Settlement Agreements : including when to use, the business case submission process, templates and guidance

2. Voluntary Severance and Early Retirement : including when to use, the business case submission process, templates and guidance

3. Redundancy

Settlement Agreements

Key points:

• The final decision as to whether to enter into a Settlement Agreement will rest with the Accountable Officer for the public body. Information on Settlement Agreements where SG has provided comments indicating that the agreement should not be entered into will form part of the information that may be made available to the Scottish Parliament.
• These arrangements will not affect the requirements for related disclosures in annual accounts: individual bodies will follow the requirements of the Financial Reporting Manual (FReM) for the financial year in question. 
• SG will collate and provide information to the Scottish Parliament on the number of Settlement Agreements and the costs involved in reaching those agreements across the Scottish Administration. SG sponsored bodies should ensure that all Settlement Agreements follow the reporting process.  
• The Public Audit Committee has expressed concern about the use of excessive discretionary (non-contractual) payments in Settlement Agreements. Accountable Officers must ensure that where discretionary payments used, they are necessary, justifiable and demonstrate value for money.
• The Public Audit Committee has also expressed concern about the use of confidentiality clauses in Settlement Agreements. These clauses may still be used but only where there is explicit agreement between both the employer and employee that this is required and there will be a general presumption against their use - see below for an example and further details. 
• Payment to individuals will be capped at £95,000.
• Where an organisation considers that there are compelling reasons that the cap cannot be applied, a full business case must be submitted outlining the reasons for this. Ministerial views must be obtained if this situation arises.
• Ministerial views must be obtained as and when appropriate, including in relation to any potentially high profile cases or where there is a strong, compelling business case that the cap cannot be applied.

When to use Settlement Agreements

 1. In general they may be used for one of the following reasons:

• Where an end to the employment relationship is being considered or has actually happened in circumstances that are the subject of an employment dispute between the parties. 

• In situations where the employment relationship is continuing but the employee has indicated that they have an employment dispute that remains unresolved. A legal claim may already have been lodged by the employee or the employer might believe there to be grounds that one might be. If the employer wishes to seek to settle the dispute, a Settlement Agreement might be an option for consideration.

2. As well as paying any contractual sums due, Settlement Agreements will often involve payment of a non-contractual financial consideration. A Settlement Agreement is a legally binding document and is intended to remove the possibility of the matters that it covers being the subject of future or, where commenced, further legal action. Settlement Agreements have legal status.

3 The ACAS Code of Practice and the ACAS Guide are essential further reference.

Alternative Approach 

4. In some circumstances Accountable Officers may wish to consider the option of voluntary severance which does not involve a Settlement Agreement. Decisions on which type of exit payment will be used should be supported by the relevant business case including the rationale to support the decision.

Choice of Approach

5. Any employer considering either the offer of voluntary severance or a Settlement Agreement is expected to have taken legal advice. 

6. While a Settlement Agreement may entail some additional cost with regard to a contribution towards the cost of legal advice for the employee, it does have the effect of removing the possibility of future legal action and is likely to be the preferred approach in most situations where an employment dispute exists.

Exclusions

7. Claims for damages, personal injury or lost property which are handled by reference to the employer’s normal litigation or lost property management procedures are not covered by this guidance and do not require a business case to be submitted using this process.

8. Settlement Agreements should not be used to deal with poor performance or attendance as employers will have separate policies to deal with these situations. If you are in any doubt as to whether or not a Settlement Agreement is the right approach speak to your sponsor team or SG lead contact.

Termination payments of over £95,000

9. Ministers have placed a cap on termination payments of £95,000. The cap is intended to ensure that severance arrangements for the devolved public sector are fair and equitable while providing value for money for the people of Scotland by restraining settlement payments from going excessively beyond what an authority is legally obliged to pay. This cap should include both contractual and non-contractual elements of any settlement agreed. Where the proposed exit payment calculation exceeds £95,000, the payment must be capped at £95,000. Where an organisation considers that there are compelling reasons that the cap cannot be applied, a full business case must be submitted and Ministerial views must be sought. Confirmation of Ministerial approval must be included in the final business case.

Data Protection and information sharing/reporting

10. We recognise that different organisations will use their own form of words for their Settlement Agreements however please see a draft information sharing clause for Settlement Agreements. This is not prescriptive and public bodies should feel free to use their own version provided the Agreement makes reference to the Scottish Government being entitled to use the fact that an Agreement has been entered into, to collate and publish information on the number of Settlement Agreements entered into across the Scottish Administration and the costs involved.

11. The Scottish Government will not, however, disclose the terms or circumstances of the Agreement or the name of the employee without the written consent of the employee or as required by the Scottish Parliament solely for the purposes of Parliamentary scrutiny relating to the use of public money, or as required by law. By entering into a Settlement Agreement the employee will be agreeing to the release of information on the above basis and will be taken to have provided the necessary consent for the use of their personal data for this limited purpose as required by under data protection laws.

12. Bodies will also be required to advise the employee that personal data will be released to the Scottish Government during the preparing and submission of the business case for the Settlement Agreement. The Scottish Government will handle all data supplied to it under this process in accordance with data protection legislation.

Confidentiality clauses

13. While there is a general presumption against their use, we have developed, in consultation with public bodies, a draft confidentiality clause. This should only be inserted on the request of either party (i.e. employee or employer) and then explicitly agreed with both parties, particularly the employee.

14. No confidentiality clause can be used to prevent relevant parliamentary committees or audit bodies from carrying out their appropriate oversight and scrutiny functions.

15. Any Agreement which sought to prevent an employee from making a qualifying disclosure (whistle blowing) under the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998), is unenforceable to that extent.

Settlement agreement - Business case submission process

16. The purpose of this process is to provide a strategic oversight of Settlement Agreements across the Scottish Administration and to provide advice and guidance to public bodies to achieve consistency in the use of such Agreements. It will also allow for a central record of Agreements to facilitate responses to Freedom of Information requests, other requests for information on the number and costs of Agreements across the Scottish Administration and to prepare the annual report on Settlement Agreements for the Scottish Parliament.

• With the approval of their Accountable Officer, the public body prepares a business case using the attached guidance and templates (including SPFM section).

• Prior to offering or entering into any Settlement Agreement, the public body will consult Scottish Government by submitting a copy of the business case to the relevant SG Sponsor Team or SG lead contact who will send to the SG Sponsor Director, People Directorate , Severance Policy Team and Finance Business Partner. 

• An HR lead from the SG People Directorate will work with the Sponsor Team (or the equivalent for NHS and Educational bodies) or SG lead contact, in collaboration with Severance Policy Team and Finance Business Partner to advise as necessary on the business case. Payment to individuals will be capped at £95,000.

• Ministerial views must be obtained as and when appropriate, including in relation to any potentially high profile cases or where there is a strong, compelling business case that the cap cannot be applied.

• If further information is required the Sponsor Team (or the equivalent for NHS and Educational bodies) or SG lead contact will co-ordinate by seeking information directly from the public body with any questions relating to the terms or value for money of any proposed agreement directed to the relevant Accountable Officer.
• Depending on the type of information that is being requested they may also need to seek advice from either the SG People Directorate, SGLD or Finance colleagues. 

• The response from the SG will be in writing via the relevant Sponsor Team (or the equivalent for NHS and Educational bodies) or SG lead contact with a target of responding within 5 working days, unless discussion with Ministers is required (for potentially high profile / contentious cases), in which case up to 15 working days.

• If the Scottish Government is not satisfied with either the need for such an agreement, or the terms of the proposed agreement, or its value for money, this will be highlighted in the response.

• The final decision as to whether to enter into a Settlement Agreement will rest with the Accountable Officer for the public body. Information on Settlement Agreements where SG has provided comments indicating that the agreement should not be entered into may form part of the information that may be made available to the Scottish Parliament.

• Once the Settlement Agreement is finalised the public body is required to notify theSponsor Team (or the equivalent for NHS and Educational bodies) or SG lead contact copying in the SG Director and SG People Director providing the costs, using the Final Confirmation of Costs form. 

• SG People Directorate will hold the records.

• The SG will be entitled to use the fact that a Settlement Agreement has been entered into to enable SG to collate and provide information to the Scottish Parliament on the number of Settlement Agreements and the costs involved in reaching those agreements across the Scottish Administration. SG sponsored bodies should ensure that all Settlement Agreements follow this process.

• It is worth noting that the process for Settlement Agreements differs from that for voluntary severance. In summary, a Settlement Agreement is used to settle an employment dispute and Voluntary Severance is used where post/s or skills no longer exist and redeployment is problematic. 

17. Nothing in this process prevents a body from having a protected conversation with an individual to investigate whether a Settlement Agreement is a potential route to resolving on-going employment issues. Bodies should not, however, make any formal offer to an employee without first having consulted SG on the business case.

Summary flowchart - Annex A Settlement agreement flowchart and reporting process

Settlement agreement business case template and guidance

The business case and employment information schedule

18. The Business Case template is designed to ensure rigorous consideration of whether a Settlement Agreement would be appropriate to pursue and, if so, what costs it might be appropriate to incur. It is essential that the narrative supporting the business case is clear and concise to allow proper judgement of the risks, costs (to both parties) and potential benefits to be made.

19. The data provided in the Employment Information Schedule, attached to the Business Case template, sets out the financial context. When completed, those considering the case will know the value of the employee’s current employment benefits, the total employment cost, contractual termination costs and, where applicable, what the costs of defending a legal case might be, taking into account the likelihood of it being pursued and won by the employee. 

20. This will then help inform the decision on whether an agreement should be pursued and, if so, what if any non-contractual financial consideration it would be reasonable and proportionate to offer, bearing in mind that any non-contractual payments must be necessary, justifiable and demonstrate value for money.

21. Advice on any technical aspects of the completion of the Business Case template, Employment Information Schedule or Final Confirmation of Costs return may be sought from the SG Delivery/Public Body Support Team (SGPDSeverance@gov.scot).

Employment Tribunal cases

22. Where an employee has lodged an Employment Tribunal claim, consideration should be given at an early stage as to whether conciliation underpinned in a Settlement Agreement may be appropriate as an alternative to allowing the case to proceed to a full hearing.

23. In such circumstances, a business case should be submitted setting out the estimated costs and potential award if the case is upheld, along with the estimated likelihood of success. 

24. A ceiling within which a settlement may be negotiated should be set out. A settlement up to this ceiling may be negotiated at any time, up until conclusion of any substantive hearing, during the Employment Tribunal process. 

25. Where costs exceed the original ceiling, a revised business case should be submitted immediately for consideration providing a detailed explanation of the reasons for the higher costs.

Timeframes for feedback

26. A target for response is a maximum of 5 working days if the Scottish Government does not find the case to be contentious or unusual, or within 15 working days if there may be elements which are contentious or unusual, or if the case is being referred to Scottish Ministers. 

27. Where cases require fast tracking, contact should be made with the relevant Sponsor Team to discuss how this can be accommodated.

Defining Contractual versus Non-Contractual Payments

28. Payment of a non-contractual sum is not always necessary in order for a Settlement Agreement to be agreed, whereas securing voluntary severance does imply payment will be made. Where payments to an employee are made under either type of agreement they will be either contractual or non-contractual in nature.

29. Contractual payments are those which would be received in the normal course of employment. These will include performance related payments and, on termination, notice payments and payments in lieu of time owed. They will also include lump sum and pension payments to which the employee may be entitled in relation to termination of employment through their relevant severance policy arrangements.

30. Non-contractual payments are those to which the employee has no entitlement in the normal course of employment and which are offered on a discretionary basis in order to resolve an employment dispute or secure the voluntary exit of an employee. Accountable Officers must ensure that any non-contractual payment represents value for money and is defensible in all circumstances of the case.

Draft information sharing clause

The Scottish Government will be entitled to use the fact that an Agreement has been entered into to enable them to collate and provide information on the number of Settlement Agreements entered into with the Scottish Government and across the wider public sector and also to provide collated information on the costs involved. The Scottish Government will not however disclose the terms or circumstances of the Agreement or the name of the Employee without the written consent of the Employee or as required by the Scottish Parliament solely for the purposes of Parliamentary scrutiny relating to the use of public money or as required by law.

Draft confidentiality clause

Optional confidentiality draft clause

1.1 The Employee acknowledges and agrees that the Employee will continue to be bound by any term of the contract of employment regarding confidentiality. In accordance with the Employee’s common law and statutory duties (including the Official Secrets Acts) the Employee agrees that they will not disclose or make use of and warrants that they have not prior to the date of this Agreement disclosed or made use of for the Employee’s own or another person’s benefit any confidential information belonging to or concerning the Employer or any of its clients, agencies, suppliers or their colleagues, except when required to do so by law.

1.2 The terms and conditions of this Agreement are confidential to all parties and all parties agree that all matters relating to the termination of the Employee's employment and all circumstances leading to the termination of the Employee's employment will remain confidential between the parties and their appointed representatives, and will not be revealed to or discussed with any other parties, with the exception of: (i) the Employee's immediate family provided that the Employee has obtained their agreement to keep the information confidential; (ii) HM Revenue & Customs and any other statutory bodies; (iii) any other person to whom the employer is bound to report, or (iv) as required by law, including any court or tribunal, or as required in relation to appearance as a witness in any court or tribunal. In particular, no information will be given to the media either directly or indirectly.

No derogatory statement draft clause

1.3 The Employee agrees not to make or publish or permit or authorise to be made or published any derogatory or disparaging comments whether in writing or otherwise (including but not limited to any on-line diary, social media or other website) about the Employer, its officers, or employees or any of them or any statement which is calculated to or might reasonably be expected to damage the reputation or interests of the Employer, its officers, and employees.

Rights in relation to protected disclosures

1.4 For the avoidance of doubt, nothing in this Agreement shall prejudice any rights that the Employee has or may have under the Public Interest Disclosure Act 1998 (sometimes referred to as whistleblowing rights) and/or any obligation that the Employee may have or raise concerns about patient safety and care with regulatory or other appropriate statutory bodies pursuant to their professional and ethical obligations including those obligations set out in guidance issued by regulatory or other appropriate statutory bodies from time to time.

1.5 With regard to the confidentiality obligations generally on either party in this clause, nothing in this Agreement will prevent the Employer or its employees or agents making any disclosure in response to requests from the Auditor General for Scotland, any Parliamentary Committee or as required in terms of its other Parliamentary accountabilities or by an order of any court of competent jurisdiction. The Scottish Ministers will be entitled to use the fact that an Agreement has been entered into to enable them to collate and provide information on the number of Settlement Agreements entered into with the Scottish Ministers and across the wider public sector and also to provide collated information on the costs involved. The Scottish Ministers will not however disclose the terms or circumstances of the Agreement or the name of the Employee without the written consent of the Employee or as required by the Scottish Parliament solely for the purposes of Parliamentary scrutiny relating to the use of public money or as required by law.

Voluntary severance

Key points:

• the final decision as to whether to offer voluntary severance will rest with the Accountable Officer for the public body
• Accountable Officers must ensure that where discretionary payments are used, they are necessary, justifiable and demonstrate value for money
• Voluntary Severance can be used on an individual or on a scheme (multiple) basis
• payment to individuals will be capped at £95,000
• where an organisation considers that there are compelling reasons that the cap cannot be applied, a full business case must be submitted outlining the reasons for this. Ministerial views must be obtained if this situation arises.
• Ministerial views must be obtained as and when appropriate, including in relation to any potentially high profile cases or where there is a strong, compelling business case that the cap cannot be applied.
• Where appropriate, it is expected that notice should be worked and annual leave taken rather than a payment being made in lieu of notice or untaken annual leave.
• a maximum payback period of 24 months will apply in all cases (i.e. the time taken to recover the compensation costs against normal salary costs). Where organisations’ own compensation schemes have a payback period of less than 24 months, the lower period will apply.
• the payback period will be applied at an individual rather than scheme level
• an individual leaving as a result of voluntary severance may not return to employment within the same employer for a period of at least 12 months, including as a temporary agency worker or via a procurement route
• public bodies in the Civil Service Pension Schemes whether they are a civil service organisation or not have different reporting procedures to that of other public bodies including the requirement for ministerial approval for all cases. These public bodies must comply with the SPFM except where it is inconsistent with any statutory requirements related to exit payments.

When to use Voluntary Severance

31. Compensation should only be offered on a value for money basis, for example restructuring and post/s no longer available or the individual/s particular skill sets or location means that redeployment would be problematic. 

Alternative approach

32. In circumstances where there is an employment dispute, Accountable Officers may wish to consider whether use of a Settlement Agreement is more appropriate. Decisions on which type of exit payment will be used should be supported by the relevant business case including the rationale to support the decision.

Exclusions

33. Voluntary Severance should not be used to deal with poor performance or attendance as employers will have separate policies to deal with these situations. 

34. If you are in any doubt as to whether or not Voluntary Severance or a Settlement Agreement is the right approach, public bodies should speak to their Sponsor Team (or the equivalent for NHS and Educational bodies) or SG lead contact.

Early retirement

35. Organisations which offer early retirement in the context of an exit scheme, with the employer topping up any shortfall in pension at a cost should follow the guidance and processes for Voluntary Severance.

Voluntary severance - business case submission process

36. The purpose of this process is to provide advice and guidance to public bodies to achieve consistency in the use of exit payments.

• A public body prepares a business case using the relevant guidance and templates Please note there are a range of templates depending on whether or not it is a single or bulk exit and if the body is in Civil Service Pension Scheme or another pension scheme.

• Prior to running a scheme or offering an individual voluntary severance, the public body will consult Scottish Government by submitting a copy of the business case to the relevant SG Sponsor Team (or the equivalent for NHS and Educational bodies) or SG lead contact. The Sponsor Team (or the equivalent for NHS and Educational bodies) or SG lead contact send the business case to the SG Sponsor Director, People Directorate , Severance Policy Team and Finance Business Partner.

• An HR lead from the SG People Directorate will work with the Sponsor Team or SG lead contact in collaboration with Severance Policy Team and Finance Business partner to advise as necessary on the business case. Payment to individuals will be capped at £95,000. Where an organisation considers that there are compelling reasons that the cap cannot be applied, a full business case must be submitted outlining the reasons for this.

• Ministerial views must be obtained if this situation arises. For all public bodies in the Civil Service Pension Scheme ministerial approval will be required for all cases. These cases will be submitted by the sponsor team or SG lead contact including a copy of the completed business case 

• If further information is required the Sponsor Team (or the equivalent for NHS and Educational bodies) or SG lead contact will co-ordinate by seeking information directly from the public body with any questions relating to the terms or value for money of any proposed scheme or individual directed to the relevant Accountable Officer.

• Depending on the type of information that is being requested they may also need to seek advice from either the SG People Directorate, SGLD or Finance colleagues. 

• The response from the SG will be in writing via the relevant Sponsor Team or SG lead contact with a target of responding within 5 working days, unless discussion with Ministers is required (for potentially high profile / contentious cases), in which case up to 15 working days.

• If the Scottish Government is not satisfied with either the need for such a scheme or the individual case, or the terms of the proposed scheme or individual case, or its value for money, this will be highlighted in their response.

• The final decision as to whether to enter into a scheme or individual case for Voluntary Severance will rest with the Accountable Officer for the public body.

• It is worth noting that the process for Voluntary Severance differs from that for Settlement Agreements. In summary, a Settlement Agreement is used to settle an employment dispute and Voluntary Severance is used where post/s or skills no longer exist and redeployment is problematic. 

 Summary Flowchart – Annex B: Voluntary Severance - Governance flowchart

Voluntary severance business case template and guidance

37. The Business Case template is designed to ensure rigorous consideration of either a scheme or individual case. It is essential that the narrative supporting the business case is clear and concise to allow proper judgement of the reasons, costs and potential benefits to be made.

38. Advice on any technical aspects of the completion of the Business Case template may be sought from the SG People Directorate or Severance Policy Team.

Timeframes for feedback

39. A target for response is a maximum of 5 working days if the Scottish Government does not find the case to be contentious or unusual, or within 15 working days if there may be elements which are contentious or unusual, or if the case is being referred to Scottish Ministers.

40. Where cases require fast tracking, contact should be made with the relevant Sponsor Team to discuss how this can be accommodated.

Defining contractual versus non-contractual payments

41. Payment of a non-contractual sum is not always necessary in order for a Settlement Agreement to be agreed, whereas securing voluntary severance does imply payment will be made. Where payments to an employee are made under either type of agreement they will be either contractual or non-contractual in nature.

42. Contractual payments are those which would be received in the normal course of employment. These will include performance related payments and, on termination, notice payments and payments in lieu of time owed (although the expectation is that notice periods will be worked and outstanding time owed will be taken prior to termination of employment). They will also include lump sum and pension payments to which the employee may be entitled to in relation to termination of employment through their relevant pension compensation scheme.

43. Non-contractual payments are those to which the employee has no entitlement in the normal course of employment and which are offered on a discretionary basis in order to resolve an employment dispute or secure the voluntary exit of an employee. Accountable Officers must ensure that any non-contractual payment represents value for money and is defensible in all circumstances of the case.

 Termination payments of over £95,000

44. Ministers have placed a cap on termination payments of £95,000. Where the proposed exit payment calculation exceeds £95,000, the payment must be capped at £95,000. Where an organisation considers that there are compelling reasons that the cap cannot be applied, a full business case must be submitted and Ministerial views must be sought. Confirmation of Ministerial approval must be included in the final business case.

Settlement agreement business case templates:

Prior to entering into an agreement:

• Business case – June 2021 version
• Supporting documentation – Information schedule – June 2021 version

Post agreement - final confirmation of terms:

• Supporting documentation – Post agreement information schedule – June 2021 version

Voluntary severance business case templates:

All organisations in civil service pension schemes

Bulk scheme:

• Bulk business case – June 2021 version
• Once approved summary (bulk) Cabinet Office form

Individual Cases:

• Individual business case – June 2021 version
• Once approved summary (individual) Cabinet Office form

All public bodies, except those in civil service pension schemes

• Bulk scheme business case – June 2021 version
• Individual cases business case – June 2021 version

Redundancy

Since 2007, a key strand of Scottish Government pay policy is the commitment to No Compulsory Redundancies. This is on the basis that public bodies are expected to negotiate extensions to the policy in return for continuing or additional workforce flexibilities.

• The key aim is for constructive and collaborative discussions between employers and their trade unions to make the most effective use of the funding available for their pay awards. 
• Maintaining employment in the public sector is crucial for the economy as well as individuals, families and communities.
• Ministers expect all public bodies to engage with this framework and will continue to work with all public sector employers, staff and their representatives to meet this commitment and consider how this might be extended further.
• In the current climate, we would expect any extension of the commitment to be balanced by workforce flexibilities that increase efficiencies and manage costs while maintaining the quality of services.
• Employers are best placed to determine what flexibilities are necessary and appropriate for their particular staff group, rather than these being laid down centrally – the details will be for agreement between employers and staff groups.
• Public bodies are expected to look at all appropriate measures to avoid compulsory redundancy and should work closely with affected staff and their unions, to identify suitable alternative employment opportunities, including re-deployment and re-training, where necessary .

The policy position remains that public bodies should work with their staff representatives to negotiate extensions to their No Compulsory Redundancy agreements where it is practical to do so.

The No Compulsory Redundancy policy does not prevent organisations from managing their workforces through voluntary exit schemes as set out in the Voluntary Severance section of this guidance.

Last reviewed June 2021