DATED [MONTH] 201[4] (1) [APPLICANT'S NAME]

Transcription

1 DATED [MONTH] 201[4] (1) [APPLICANT'S NAME] (2) BALFOUR BEATTY GROUP LTD; CARILLION PLC; COSTAIN GROUP PLC; KIER GROUP PLC; LAING O'ROURKE PLC; SIR ROBERT MCALPINE LTD; SKANSKA UK PLC; VINCI PLC APPLICANT AGREEMENT WITHOUT PREJUDICE AND SUBJECT TO CONTRACT

2 APPLICANT AGREEMENT THIS AGREEMENT is made on [DAY] [MONTH] 201[4]. BETWEEN: (1) [NAME] of [APPLICANT'S ADDRESS] (the "Applicant"); and (2) BALFOUR BEATTY GROUP LTD incorporated and registered in England and Wales with company number whose registered office is Fourth Floor, 130 Wilton Road, London, SW1V 1LQ; CARILLION PLC incorporated and registered in England and Wales with company number whose registered office is 24 Birch Street, Wolverhampton, WV1 4HY; COSTAIN GROUP PLC incorporated and registered in England and Wales with company number whose registered office is Costain House, Vanwall Business Park, Maidenhead, Berkshire, SL6 4UB; KIER GROUP PLC incorporated and registered in England and Wales with company number whose registered office is at Tempsford Hall, Sandy, Beds, SG19 2BD; LAING O'ROURKE PLC incorporated and registered in England and Wales with company number whose registered office is Bridge Place Anchor Boulevard, Admirals Park Crossways, Dartford, Kent DA2 6SN; SIR ROBERT MCALPINE LTD incorporated and registered in England and Wales with company number whose registered office is at Eaton Court, Maylands Avenue, Hemel Hempstead, Hertfordshire, HP2 7T; SKANSKA UK PLC incorporated and registered in England and Wales with company number whose registered office is at Maple Cross House, Denham Way Maple Cross, Rickmansworth, Hertfordshire, WD3 9SW; and VINCI PLC incorporated and registered in England and Wales with company number whose registered office is at Astral House, Imperial Way, Watford, Hertfordshire, WD24 4WW (together, "the Scheme Companies") WHEREAS: (each a party to this Agreement). (A) (B) The Applicant and the Scheme Companies wish to enter into a binding agreement that all and any claims that the Applicant may have or will have against the Scheme Companies or the Scheme Associated Companies or their respective Associates arising out of or in connection with the activities of or information held by The Services Group of the Economic League ("SGEL") or any part of it and/or The Consulting Association ("TCA") will be resolved by arbitration or by any other agreed means between the parties in accordance with the Scheme Rules and this Agreement (the "Scheme"). The Applicant agrees to assign any rights they may have which constitute a Third Party Claim to the Scheme Companies. (C) This Agreement is made pursuant to the Arbitration Act THE PARTIES AGREE AS FOLLOWS: 1. THE SCHEME All Claims the Applicant has or may have against the Scheme Companies or the Scheme Associated Companies or their respective Associates arising out of or in connection with the

3 activities of or information held by the SGEL and/or the TCA shall be resolved by way of arbitration or by any other agreed means in accordance with the Scheme Rules and this Agreement. 2. INDEPENDENT LEGAL ADVICE 2.1 The Applicant warrants that, in accordance with the legislation governing settlement agreements: before entering into this Agreement, the Applicant received independent legal advice from the Qualified Lawyer as to the terms and effect of this Agreement and in particular its effect on the Applicant's ability to pursue their employment rights before any court or employment tribunal; and the Qualified Lawyer has advised the Applicant that they are a Solicitor holding, both at the date of this Agreement and at the date the said advice was given, a current practising certificate and a contract of insurance that is currently in force, and was at the time the said advice was given, covering the risk of a Claim by the Applicant in respect of loss arising in consequence of the said advice. 3. AGREEMENT 3.1 Following careful consideration of the facts and circumstances relating to the Applicant's information held by SGEL or any part of it and/or TCA and/or the application(s) for work at the Scheme Companies or Scheme Company Associates, their respective Associates or any third party from time to time the Applicant agrees: not to institute or pursue any Claims against the Scheme Companies or the Scheme Associated Companies or their respective Associates before any court or employment tribunal; and to withdraw any Claims they may have against any Scheme Company or any Scheme Associated Company or their respective Associates or any third party before any court and where such claim exists to provide the Scheme Companies with a copy of any notice of discontinuance or agreed consent order within seven (7) days of receipt by the Applicant's Solicitor of this executed Agreement unless otherwise agreed by the Scheme Companies' Solicitors; and to withdraw any Claims they may have against any Scheme Company or Scheme Associated Company, or their respective Associates or any third party before any employment tribunal and to provide the Scheme Companies' Solicitors with a copy of the written withdrawal application to the Employment Tribunal within seven (7) days of the date of this Agreement; and in respect of any Claims to which clauses or apply, the Applicant acknowledges that the Scheme Companies may apply to the court or Employment Tribunal to have the Claims dismissed and the Applicant will not object to such application. 3.2 In consideration of clause 3.1 (and provided that the Applicant has complied with the terms of this Agreement, including ensuring (i) receipt by the Scheme Companies' Solicitors of the signed Adviser's Certificate and (ii) receipt by the Scheme Companies' Solicitors of this Agreement duly signed by the Applicant), the parties agree: that the Applicant's application for Compensation shall be entitled to proceed in accordance with the Scheme Rules; and that there shall be no order for the Scheme Companies', Scheme Associated Companies' or their respective Associates' costs in relation to the withdrawal, discontinuance or stay by consent order of any Pre-Existing Claim or in respect of any Full Review defence; and

4 3.2.3 that they will use their best endeavours to reach separate agreement in relation to the Applicant's liability to any defendant who is not a Scheme Company or any Scheme Associated Company or their respective Associates, if any, arising from the withdrawal, discontinuance or stay by consent order of any Pre-Existing Claim. 4. WARRANTIES 4.1 The Applicant further warrants that they have: read and understood this Agreement; taken legal advice from a Qualified Lawyer about joining the Scheme and entering into this Agreement; disclosed to the Qualified Lawyer all facts or circumstances relating to the Applicant's work or prospective work with the Scheme Companies or Scheme Associated Companies that may give rise to a claim against the Scheme Companies or any of their Associates arising out of or connected in any way with the activities of, and/or the information held by, the SGEL or any part of it and/or the TCA; other than a Pre-Existing Claim, if any, the Applicant is not pursuing any proceedings in any court, tribunal or otherwise in any jurisdiction against the Scheme Companies or Scheme Associated Companies or any of their respective Associates in respect of the activities of or information held by the SGEL or any part of it or the TCA and will not commence any such proceedings; and read and understood the Scheme Rules. 4.2 The Applicant acknowledges that the Scheme Companies have entered into this Agreement in specific reliance on the warranties in clause 4.1 and that such warranties are a condition precedent to the Scheme Companies' obligations under this Agreement. 4.3 The Scheme Companies believe that any payments made under this Agreement may be made free of income tax and employee national insurance but they make no warranties or representations as to whether income tax or employee national insurance contributions are lawfully payable in relation to any payments made under this Agreement and/or pursuant to the Scheme Rules. 5. PRELIMINARY LEGAL COSTS 5.1 The Scheme Companies will pay or procure payment of the Applicant's legal fees: where the Applicant is not entitled to proceed by way of Full Review, up to a total limit of 250 (excluding VAT) incurred solely in advising the Applicant in connection with whether to participate in the Scheme Rules and this Agreement; or where the Applicant is entitled to proceed by way of Fast Track and Full Review, up to a total limit of 400 (excluding VAT) incurred solely in advising the Applicant in connection with whether to participate in the Scheme Rules, this Agreement and their choice of procedure pursuant to the Scheme Rules. 5.2 The Scheme Companies will make or procure the payment of such fees at clause 5.1 directly to the firm for which the Qualified Lawyer works on receipt of an invoice by the Scheme Administrator providing that it is (i) addressed to the Applicant but marked payable (whether in whole or in part) by the "Scheme Companies"; and (ii) records the Applicant's eligibility reference on its face. 6. COMPLIANCE WITH LEGISLATION The conditions regarding settlement agreements under the Employment Rights Act 1996, the Working Time Regulations 1998, the Trade Union and Labour Relations (Consolidation) Act 1992, the Equality Act 2010, the Sex Discrimination Act 1975, the Race Relations Act 1976, Schedule 3A

5 of the Disability Discrimination Act 1995, Schedule 4 of the Employment Equality (Sexual Orientation) Regulations 2003, Schedule 4 of the Employment Equality (Religion or Belief) Regulations 2003 are satisfied. 7. SCHEME ARBITRATION All decisions shall be final and binding. By agreeing to arbitration pursuant to the Scheme Rules and this Agreement, the parties waive irrevocably their right to any form of appeal, review or recourse to any state court or other judicial authority, insofar as such waiver may be validly made under the Arbitration Act ASSIGNMENT OF RIGHTS All of the Applicant's rights which constitute a Third Party Claim will pass to and be assigned to the Scheme Companies absolutely upon execution of this Agreement. 9. ENTIRE AGREEMENT 9.1 This Agreement contains the whole agreement and understanding between the parties relating to the subject matter of this Agreement to the exclusion of any terms implied by law which may be excluded by contract and, subject to clause 9.2, supersedes any previous written or oral agreement between the parties in relation to the subject matter of this Agreement. 9.2 The Appendices and Scheme Rules form an integral part of this Agreement and have effect as if set out in full in the body of this Agreement. A reference to this Agreement includes the Appendices and the Scheme Rules. 9.3 Each party acknowledges and agrees that it does not rely on, has no remedy in respect of, and has not been induced to enter into this Agreement by any oral or written statement, representation, warranty, undertaking or understanding (whether negligently or innocently made) other than as expressly set out in the Scheme Rules and this Agreement. 9.4 So far as permitted by law and except in the case of fraud, each party agrees and acknowledges that its only right and remedy in relation to any representation, warranty or undertaking made or given in connection with this Agreement shall be for breach of the terms of this Agreement to the exclusion of all other rights and remedies (including those in tort or arising under statute). 10. COUNTERPARTS This Agreement may be executed by counterpart, each of which, when executed and delivered, shall be an original, and all counterparts together shall constitute one and the same instrument. 11. LAW AND JURISDICTION 11.1 This Agreement shall be governed by and construed in accordance with the laws of England and Wales Any dispute arising out of or connected to this Agreement shall be resolved by arbitration in London conducted in English by a single arbitrator pursuant to rules of the London Court of International Arbitration, whose rules are deemed to be incorporated by reference into this clause DEFINITIONS In this Agreement, the following terms have the following meanings: "Adviser's Certificate" means a certificate in the form attached [at Appendix 1] to this Agreement, signed by the Qualified Lawyer advising the Applicant;

6 "Agreement" means this Applicant Agreement and its Appendices which together shall form the entire agreement between the parties; "Applicant" means the first party to this Agreement being [NAME] of [APPLICANT'S ADDRESS]; "Arbitration Agreement" has the same meaning as in Part I of the Arbitration Act 1996; "Associate" means any present or former employees, officers or directors of any Scheme Company or Scheme Associated Company as the case may be; "Claim" and "Claims" has the meaning provided for in Appendix 2; "Compensation" means a Fast Track Payment or a Full Review Payment in accordance with the Scheme Rules; "Pre-Existing Claim" means a claim to which clauses and apply; "Qualified Lawyer" means [NAME] of [FIRM], [FIRM ADDRESS] or [generic description]; "Scheme" has the meaning provided for in Recital (A); "Scheme Rules" means the Rules of the Compensation Scheme set out in full at "Scheme Associated Company" means the Scheme Company's ultimate parent undertaking and all undertakings which are ultimately owned or controlled by the ultimate parent undertaking of that Scheme Company for the time being; "Scheme Company" means any one of those companies individually contributing to the Compensation Scheme at the date of execution of this Agreement and which is a party to this Agreement and reference to the "Scheme Companies" means any one or more of the Scheme Companies collectively; "Scheme Companies' Solicitors" means the solicitors retained by the Scheme Companies to make representations on their behalf being Pinsent Masons LLP, whose offices are at 30 Crown Place, Earl Street, London EC2A 4ES; "SGEL" has the meaning provided for in Recital (A); "TCA" has the meaning provided for in Recital (A); and "Third Party Claims" means any right, claim or cause of action (excluding a claim for non-party disclosure pursuant to Rule 5.2 of the Scheme Rules) that the Applicant has against any person other than the Scheme Companies and the Scheme Associated Companies and arising out of the circumstances giving rise to the application for Compensation or otherwise relating to the activities of or information held by TCA or SGEL or any part of it.

7 SIGNED by the APPLICANT... (Name) (Date) SIGNED for and on behalf of the SCHEME COMPANIES... (Firm) (Name) (Date)

8 APPENDIX 1 ADVISER'S CERTIFICATE [To be written on Solicitors' letterhead] TO: Dear Sirs Re: [APPLICANT NAME] I refer to the terms of the Applicant Agreement which is to be entered into by my client [Applicant Name] ("my Client") and Balfour Beatty Group Limited, Carillion Plc, Costain Group Plc, Kier Group Plc, Laing O'Rourke Plc, Sir Robert McAlpine Ltd, Skanska UK Plc and Vinci Plc (the "Scheme Companies") and which has today been signed by my Client. I hereby certify that: 1. I am a Solicitor, holding now and at all relevant times a current practising certificate. 2. Before the said Applicant Agreement was signed I advised my Client on the terms and effect of the Applicant Agreement and in particular its effect on [his/her] ability to pursue [his/her] rights before a court or employment tribunal. 3. At the time I gave the advice there was in force a contract of insurance covering the risk of a claim by my Client in respect of loss arising in consequence of such advice. 4. I am a relevant independent adviser within the meaning of the legislation governing settlement agreements. I am not acting for or employed by the Scheme Companies, any associated employer or any person connected with the Scheme Companies as those terms are defined by the governing legislation. Yours faithfully Signed... [Name of Applicant's Solicitor], Solicitor

9 APPENDIX 2 THE CLAIMS "Claim" or "Claims" shall mean all and any claims that the Applicant has or may have against the Scheme Companies or the Scheme Associated Companies or their respective Associates arising out of or connected in any way with the activities of, and/or the information held by the SGEL or any part of it and/or the TCA, which claims shall include but not be limited to the following: 1. any claim for conspiracy; 2. any claim arising out of or relating to the misuse of personal data, including under the Data Protection Act 1998; 3. any claim for defamation; 4. any claim for breach of confidence; 5. any claim for breach of contract; 6. any claim for wrongful dismissal; 7. any claim for breach of trust and confidence or of any other implied term, in connection with the employment or the provision of any other benefit or potential benefit to the Applicant (whether contractual or not); 8. any claim under the European Convention of Human Rights and Fundamental Freedoms 1950; 9. any claim arising out of a contravention or alleged contravention of Part X of the Employment Rights Act 1996 (unfair dismissal); 10. any claim arising out of a contravention or alleged contravention of section 135 of the Employment Rights Act 1996 (the right to a redundancy payment); 11. any claim arising out of a contravention or an alleged contravention of a provision contained in Part II of the Employment Rights Act 1996 (protection of wages); 12. any claim arising out of a contravention or alleged contravention of Part V (protection from suffering detriment in employment), Part VI (time off work) or Part VII (suspension on medical or maternity grounds) of the Employment Rights Act For the avoidance of doubt the reference to Part V of the Employment Rights Act 1996 includes any claim under sections 10 to 13 of the Employment Relations Act 1999 (the right to be accompanied at disciplinary or grievance hearings and related rights); 13. any claim arising out of a contravention or alleged contravention of section 1 or 4 (right to written statement of employment particulars and changes), section 92 (right to written statement of reasons for dismissal) section 8 (right to itemised pay statement) or section 28 (right to guarantee payment) of the Employment Rights Act 1996; 14. any claim arising out of a contravention or alleged contravention of section 137 (refusal of employment on grounds related to union membership), section 138 (refusal of services by employment agency on grounds related to union membership), section 145A (inducement relating to trade union membership or activities), section 145B (inducement relating to collective bargaining) or section 146 (detriment on grounds related to union membership or activities) of the Trade Union and Labour Relations (Consolidation) Act 1992; 15. any claim arising out of a contravention or alleged contravention of paragraph 156 of Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (right not to be subjected to detriment on grounds connected with union recognition and collective bargaining);

10 16. any claim under any provision of directly applicable European law; 17. any claim for direct or indirect discrimination, harassment or victimisation on grounds of sex, marital or civil partner status, gender reassignment, pregnancy or maternity and any claim for harassment of a sexual nature, under section 63 of the Sex Discrimination Act 1975 and section 120 of the Equality Act 2010; 18. any claim for equality of terms under section 2 of the Equal Pay Act 1970 (equal pay) and sections 120 and 127 of the Equality Act 2010; 19. any claim for victimisation as a result of seeking, making or receiving a relevant pay disclosure (discussions about pay) under section 120 Equality Act 2010; 20. any claim for direct or indirect discrimination, harassment or victimisation on grounds of colour, race, nationality or ethnic or national origin, under section 54 of the Race Relations Act 1976 and section 120 of the Equality Act 2010; 21. any claim for direct or indirect discrimination, harassment or victimisation on grounds of sexual orientation under Regulation 28 of the Employment Equality (Sexual Orientation) Regulations 2003 and section 120 of the Equality Act 2010; 22. any claim for direct or indirect discrimination, harassment or victimisation on grounds of religion or belief under Regulation 28 of the Employment Equality (Religion or Belief) Regulations 2003 and section 120 of the Equality Act 2010; 23. any claim for direct or indirect discrimination, harassment or victimisation on grounds of age under Regulation 36 of the Employment Equality (Age) Regulations 2006 and section 120 of the Equality Act 2010; 24. any claim for direct or indirect discrimination, harassment or victimisation on grounds of disability and any claim for breach of the duty to make reasonable adjustments under section 17A of the Disability Discrimination Act 1995 and section 120 of the Equality Act 2010; 25. any claim for disability-related discrimination under section 17A of the Disability Discrimination Act 1995 and for discrimination arising from disability under section 120 of the Equality Act 2010; 26. any claim in relation to the duty to consider working beyond retirement under paragraphs 11 and 12 of Schedule 6 to the Employment Equality (Age) Regulations 2006; 27. any claim arising out of a contravention or alleged contravention of section 168 (right to time off for carrying out trade union duties), section 168A (right to time off for union learning representatives) section 169 (right to payment for time off under section 168 or section 168A), section 170 (right to time off for trade union activities) or section 174 (right not to be excluded or expelled from a trade union) of the Trade Union and Labour Relations (Consolidation) Act 1992; and 28. any claim in respect of liability for a breach of the Protection Form Harassment Act 1997.