Section 203 — Restrictions on contracting out.

(1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

(a) to exclude or limit the operation of any provision of this Act, or

(b) to preclude a person from bringing any proceedings under this Act before an [F1 employment tribunal].

(2) Subsection (1)—

(a) does not apply to any provision in a collective agreement excluding rights under section 28 if an order under section 35 is for the time being in force in respect of it,

(b) does not apply to any provision in a dismissal procedures agreement excluding the right under section 94 if that provision is not to have effect unless an order under section 110 is for the time being in force in respect of it,

(c) does not apply to any provision in an agreement if an order under section 157 is for the time being in force in respect of it,

(e) does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under [F2 any of sections 18A to 18C] of [F1 the Employment Tribunals Act 1996], and

(f) does not apply to any agreement to refrain from instituting or continuing . . . any proceedings within

[F3 the following provisions of section 18(1) of the Employment Tribunals Act 1996 (cases where conciliation available)— [F4 paragraph (b)] (proceedings under this Act), [F5 paragraph (l)] (proceedings arising out of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000),] if the conditions regulating [F6 settlement] agreements under this Act are satisfied in relation to the agreement [F7 [F8 paragraph (m)] (proceedings arising out of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002), ...]

(3) For the purposes of subsection (2)(f) the conditions regulating [F6 settlement] agreements under this Act are that—

(a) the agreement must be in writing,

(b) the agreement must relate to the particular [F9 proceedings],

(c) the employee or worker must have received [F10 advice from a relevant independent adviser] as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an [F1 employment tribunal],

(d) there must be in force, when the adviser gives the advice, a [F11 contract of insurance, or an indemnity provided for members of a profession or professional body,] covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice,

(e) the agreement must identify the adviser, and

(f) the agreement must state that the conditions regulating [F6 settlement] agreements under this Act are satisfied.

(3A) [F12 A person is a relevant independent adviser for the purposes of subsection (3)(c)—]

(a) [F12 if he is a qualified lawyer,]

(b) [F12 if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,]

(c) [F12 if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre, or]

(d) [F12 if he is a person of a description specified in an order made by the Secretary of State.]

(3B) [F12 But a person is not a relevant independent adviser for the purposes of subsection (3)(c) in relation to the employee or worker—]

(a) [F12 if he is, is employed by or is acting in the matter for the employer or an associated employer,]

(b) [F12 in the case of a person within subsection (3A)(b) or (c), if the trade union or advice centre is the employer or an associated employer,]

(c) [F12 in the case of a person within subsection (3A)(c), if the employee or worker makes a payment for the advice received from him, or]

(d) [F12 in the case of a person of a description specified in an order under subsection (3A)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.]

(4) [F12 In subsection (3A)(a) “ qualified lawyer ” means— ]

(a) [F12 as respects England and Wales, [F13 a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act), and]]

(b) [F12 as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.]

(5) [F14 An agreement under which the parties agree to submit a dispute to arbitration—]

(a) [F14 shall be regarded for the purposes of subsection (2)(e) and (f) as being an agreement to refrain from instituting or continuing proceedings if—]

(i) [F14 the dispute is covered by a scheme having effect by virtue of an order under section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992, and]

(ii) [F14 the agreement is to submit it to arbitration in accordance with the scheme, but]

(b) [F14 shall be regarded as neither being nor including such an agreement in any other case.]

Amendment notes

1. F1 Words in s. 203(1)(b)(2)(e)(f)(3)(c) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(c) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1
2. F2 Words in s. 203(2)(e) substituted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 1 para. 10; S.I. 2014/253, art. 3(f) (with art. 5(1))
3. F3 Words in s. 203(2)(f) and s. 203(2)(f)(i)(ii) substituted for words in s. 203(2)(f) (1.5.2001) by S.I. 2001/1107, reg. 3
4. F4 Words in s. 203(2)(f)(i) substituted (6.4.2014) by The Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2014 (S.I. 2014/431), art. 1, Sch. para. 4(a)
5. F5 Words in s. 203(2)(f)(ii) substituted (6.4.2014) by The Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2014 (S.I. 2014/431), art. 1, Sch. para. 4(b)
6. F6 Word in s. 203(2)(f)(3) substituted (29.7.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 23(1)(b), 103(3); S.I. 2013/1648, art. 2(c); S.I. 2013/1648, art. 2(c)
7. F7 S. 203(2)(f)(iii)(iv) inserted (1.10.2002) by The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(17)(b) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)
8. F8 Words in s. 203(2)(f)(iii) substituted (6.4.2014) by The Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2014 (S.I. 2014/431), art. 1, Sch. para. 4(c)
9. F9 Word in s. 203(3)(b) substituted (1.8.1998) by 1998 c. 8, s. 15, Sch. 1 para. 24(2); S.I. 1998/1658, art. 2(1), Sch. 1
10. F10 Words in s. 203(3)(c) substituted (1.8.1998) by 1998 c. 8, s. 9(1)(2)(e); S.I. 1998/1658, art. 2(1), Sch. 1
11. F11 Words in s. 203(3)(d) substituted (1.8.1998) by 1998 c. 8, s. 10(1)(2)(e); S.I. 1998/1658, art. 2(1), Sch. 1
12. F12 S. 203(3A)(3B)(4) substituted for s. 203(4) (1.8.1998) by 1998 c. 8, s. 15, Sch. 1 para. 24(3); S.I. 1998/1658, art. 2(1), Sch. 1
13. F13 Words in s. 203(4)(a) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 211(2), Sch. 21 para. 120 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9)
14. F14 S. 203(5) inserted (1.8.1998) by 1998 c. 8, s. 8(5); S.I. 1998/1658, art. 2(2), Sch. 1