United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M GRIFFITHS (of Counsel) Theodore Goddard 150 Aldersgate Street London EC1A 4EJ
For the Respondents	MR A STAFFORD (of Counsel) Messrs D J Freeman 43 Fetter Lane London EC4A 1JU


 


MR JUSTICE CHARLES: The parties to this appeal are a Mr Jones who was the Applicant before the Employment Tribunal and is the Appellant before us and (1) Foxboro International Limited and (2) Foxboro Great Britain Limited ("Foxboro") who were the Respondents before the Employment Tribunal and are the Respondents before us. The appeal is against the decision of an Employment Tribunal sitting at London (South) on 24 April 1998, the Extended Reasons for which were sent to the parties on 24 June 1998. That decision was that the Appellant (Mr Jones) is not entitled to any monetary award.

1. We shall refer to the decision of the Employment Tribunal that is under appeal as "the 1998 Decision".
2. As the Extended Reasons for the 1998 Decision show it concerned an earlier decision of an Employment Tribunal promulgated on 7 June 1991 ("the 1991 Decision"). The background facts appear from paragraph 2 of the Extended Reasons for the 1998 Decision which is in the following terms:

"2 The facts are not really in dispute. The Applicant was an employee of the Respondents for some 34½ years and was made redundant on the 14 September 1990 when he received redundancy payments which are in excess of the statutory maximum. He makes no complaint about either his dismissal for redundancy or the amount of compensation which he received in respect of that redundancy. The Applicant's normal retiring age was 65 but he could retire with the permission of his employers at any time after the age of 50 but if he did so would receive a reduced pension. The amount of reduction would be actuarially calculated and he would be informed of the amount he would receive. Consequently the Applicant who was retired as redundant when he was 59½ had an option of either deferring receipt of his pension until his 65^th birthday or of taking a reduced pension earlier. He decided after considering the matter to apply for a pension to be payable from his 60^th birthday which was January 29 1991. According to the letter which he received from the Respondent's pension fund this meant that he would receive either a full pension of £14,893.31 per annum or a tax free sum of £46,575 plus a residual pension of £10,327.13 per annum. His widow would also receive in the event of his death and irrespective of which option the Applicant took a widows pension of £7,446.65. The Applicant's complaint is that had he decided to defer his pension until the age of 65 he would have received a pension of £20,293 per annum and that a woman who retired at the age of 60 would receive a pension of that amount. This the Applicant says is discrimination and that he ought to be considered upon equal terms with a woman and receive the same pension as would a woman in his position retiring at the age of 60."

In reaching the 1991 Decision the Employment Tribunal considered (amongst other things) Barber v Guardian Royal Exchange Assurance Group [1990] ICR 616.

3. The 1991 Decision was as follows:

"The unanimous decision of the Tribunal is that the Applicant is entitled to the adjustment of his pension which is set out in this decision as he has established his claim under the provisions of the Equal Pay Act 1970 and Article 119 of the Treaty of Rome. This being a claim under the Equal Pay Act 1970 the decision is in full form pursuant to Rule 9(4) of the Industrial Tribunals (Rules of Procedure) Regulations 1985."

Paragraphs 8 and 9 of the Extended Reasons for the 1991 Decision are in the following terms:

"8 We then come to Miss Lang's second point which is that the decision in Barber's case indicates that complaint cannot be made of such discriminatory conduct before the date of the judgment in that case namely 17 May 1990. The observations of the Court of Justice on this will be found on pages 671 and 672 of the report in paragraphs 40 and 41 of the judgment where they say that as had previously been said by the court in Defrenne v Sabena (1976) ICR 547 the court is entitled to take account of the difficulties which the judgments of the court may create when persons have previously relied on a different interpretation of legislation from that which the court has now pronounced. The ruling in Dafrenne's case was that it was not possible to re-open the principles of the case and that therefore claims concerning equality could not be considered during periods prior to the date of the judgment except where proceedings or equivalent claims had already been made. The same attitude was adopted in Barber's case. In paragraph 45 the court said it must therefore be held that the direct effect of Article 119 of the Treaty may not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of the judgment except in the case of workers or those claiming under them who had before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.

9 We were referred to the decision of an Industrial Tribunal at Manchester promulgated on 13 March 1991 case No. 20096/90 Roscoe v Hick Hargreaves & Co Ltd where the Tribunal analyzed and came to a conclusion on what in its view was the actual effect of the judgment in Barber's case. In paragraph 7 of the decision the Tribunal pointed out that if the submissions of the Respondents were accepted then enforceable equality in relation to pension rights would be delayed up to 40 years. They said that they did not feel the European Court of Justice contemplated this situation. Their interpretation was that the Court of Justice intended to protect pension fund trustees from claims by those who had retired before the 17 May 1990. They give as their reason the fact that the intention of the Court of Justice was simply to protect the trustees of pension funds against a large number of unascertainable claims made by pensioners who had retired before the date of the judgment in Barber's case and whose pensions had already become payable. This of course was not the situation of the Applicant in the case before the Tribunal at Manchester nor is it the situation of the Applicant in this particular case. We feel that the decision of the Manchester Industrial Tribunal should be followed. We think that having regard to the fact that it has been clear since Defrenne's case that the definition of pay is wider than simply wages and the fact that to put on the decision of the European Court of Justice in Barber's case the construction contended for by Miss Lang is to produce inequality in payments to an indefinite time in the future this is an interpretation which should not be accepted. We prefer to accept the interpretation put on the matter by the Manchester Tribunal in Roscoe's case which means that in our view that the Applicant had suffered discrimination since 1 January 1973 the date of the United Kingdom's accession to the Treaty of Rome. Consequently we make a declaration that the applicant has suffered discrimination contrary to the principles of Article 119 of the Treaty of Rome and we order the Respondents to increase the Applicant's pension so that from 1 January 1973 it is the equivalent pension which would be payable to a woman of the same age as the Applicant retiring on the same day. We have no doubt the Respondents actuary would be able to work out exactly what this is but in case of difficulty the parties have liberty to apply to the Tribunal for a decision on what pension should be payable to the Applicant by the Respondents."

(Our emphasis)

The declaration and order at the end of paragraph 9 identifies the adjustment referred to in the 1991 Decision itself. It is specific as to the basis upon which the pension is to be increased. Further it clearly demonstrates a rejection by the Employment Tribunal of the argument put on behalf of Foxboro and recorded in paragraph 8 of the Extended Reasons.

4. Both sides appealed the 1991 Decision. Prior to serving the notice of appeals being served:

(1) On 7 and again on 24 June 1991 the Regional Office of the Industrial Tribunals wrote to both parties stating (amongst other things) that:

I am asked by the chairman to draw to the parties attention to the fact that a Tribunal in Leeds has apparently referred a similar point to Luxembourg for determination.

-------- It is in the chairman's view for you to take such steps as you may be advised to take in the light of the reference.

(2) A Mr Coles who was the Director of Legal Affairs and Company Secretary of Siebe Plc and as such was dealing with the litigation on behalf of the Respondents, Foxboro wrote to Mr Jones on 20 June 1991 stating (amongst other things) that:

We will be entering an appeal against this decision (the 1991 Decision) and, of course, there can be no question of making any adjustment to your pension until the matter is finally decided.

In this context you have, no doubt, read that the Trustees of the Coloroll Pension Scheme, supported by the DTI, are taking a test case to Luxembourg and it is anticipated that this will take approximately 18 months. In order to save duplicating effort I would, therefore, propose to you that once the Appeal is lodged to the Employment Appeal Tribunal we ask it to be stood over pending the outcome of the Coloroll case.

In their notice of appeal dated 16^th July 1991 Foxboro raised the point whether the decision in Barber v Guardian Royal Exchange Assurance Group [1990] ICR 616 limited Mr Jones' claim to an increase of his pension benefits to the period from 17^th May 1990 on the basis that that decision did not have retrospective effect prior to 17^th May 1990. Foxboro were therefore asserting that the Employment Tribunal had erred in declaring that the increase in Mr Jones pension should be calculated from 1 January 1973 and if he was entitled to an increase it should be calculated from 17^th May 1990. In his notice of appeal dated 17^th July 1991 Mr Jones' asserted that if the Employment Tribunal had purported to rule that his pension contributions and service prior to 1^st January 1973 should be excluded in calculating the Appellant's entitlement, it erred in so ruling.

5. In mid-1991, and thus around the time that they respectively prepared and served their notices of appeal the parties exchanged correspondence. On 15 July 1991 Mr Jones wrote to Mr Coles. That letter was in the following terms:

"Thank you for your letter of June 20^th. I apologise for the delay in replying while I sought legal advice.

I too will be appealing against the decision as a precaution since, although it clearly accepts discrimination against me, it is not totally clear as to the precise increase in pension which I should be paid to be consistent with previous awards in similar cases.

I am advised also that it would be beneficial to request that the appeal hearing be stood over until the outcome of the Coloroll and the Neath v Steeper(1991) cases at Luxembourg.

In the meantime, and to avoid possible later controversy regarding interest to be added, I believe you should set aside the pension increase awarded to me by the Tribunal into a High Interest Deposit Account monthly and await indication of your willingness to do this."

6. On 16 July 1991 Mr Coles wrote to the Employment Appeal Tribunal and copied the letter to Mr Jones. That letter was in the following terms:

"Re: Foxboro International Ltd v William John Jones

I enclose a Notice of Appeal from the decision of an Industrial Tribunal in connection with the above. Perhaps you would be good enough to acknowledge receipt.

You will see that the Appeal raises (inter alia) issues stemming from the decision of the European Court in the Barber v Guardian Royal Exchange Assurance Group case and I believe that further Appeals to the European Court to clarify various points arising from that decision are in process. This being so, we would wish to apply to have the hearing of this Appeal postponed until after this further decision of the European Court, in the hope that by doing so the outstanding issues can be resolved without the need for a Hearing.

A copy of this letter has been sent to the Respondent."

We pause to comment that (a) Mr Coles' expression of hope in that letter was that following decisions of the European Court the outstanding issues on the appeal could be resolved without the need for a hearing, and (b) this is an understandable and realistic hope having regard to the issues raised on the appeals.

7. On 17 October 1991 this Tribunal stayed both appeals pending the outcome of the decision in Coloroll Pension Trustees Ltd v Russell & Others. That decision is reported in [1995] ICR 179. The rulings requested from the European Court of Justice appear at pages 187 to 189 and the order of the High Court making those requests was received at the European Court of Justice on 31 July 1990. We add that the judgment the Neath v Steeper case referred to by Mr Jones in his letter dated 15 July 1991 (Neath v Hugh Steeper Ltd (KC 152/91) [1995] ICR 158) is referred to in the judgment in the Coloroll case (see for example paragraph 76 at page 231G thereof).
8. After judgment was given in the Coloroll case this Tribunal wrote to the parties in November 1994 asking them to inform this Tribunal of the latest position in the appeals against the 1991 Decision. It seems that thereafter there was some correspondence between the parties and this Tribunal which we have not seen. There then followed an important exchange of correspondence. It is as follows:

(1) On 1 February 1995 Mr Coles wrote to the Registrar of this Tribunal in the following terms:

"Re: Foxboro International Ltd v (1) W Jones (2) Foxboro GB Ltd

Thank you for your letter of January 23, 1995.

I enclose a copy of the letter I have sent to Mr Jones which is self explanatory.

I will be in touch with you further as soon as I receive a response."

(2) 1 February 1995 Mr Coles wrote to Mr Jones in the following terms:

"I have received two letters from the Employment Appeal Tribunal requesting to know the current position concerning our respective Appeals from the Industrial Tribunal decision.

As you are probably aware the judgment in the Coloroll case was rendered last year and decided categorically that equalisation of pensions was only required in respect of employment subsequent to the date of the Barber Judgment ie 17^th May, 1990.

Therefore, equalisation in your case only applies in respect of the period from 27^th May, 1990 until 14^th September, 1990 when you left employment. I confirm that the Trustees have already agreed that your pension should be increased to reflect this and the increase will be implemented shortly.

In these circumstances can I suggest that we each withdraw our appeal."

(Our emphasis)

We pause at this stage to comment that this letter links directly to the argument referred to in paragraphs 8 and 9 of the Extended Reasons for the 1991 Decision and to the grounds in the two Notices of Appeal. Further the description of the effect of the Coloroll decision contained in Mr Coles' letter dated 1 February 1995 accords with, and supports, the argument advanced on behalf of Foxboro and which was rejected by the Employment Tribunal in the 1991 Decision. It is clear to us that both (1) Foxboro, and (2) Mr Jones and the Solicitors who were then acting for him, namely Tarran Jones and Co, were aware of this. We base this finding on the point that all of them were fully aware of the issues argued before the Employment Tribunal and the 1991 Decision. It follows, in our judgment, that (1) Foxboro on the one hand, and (2) Mr Jones and his then Solicitors on the other, were aware:

(a) that the Coloroll decision provided binding authority in favour of the arguments being advanced on behalf of Foxboro on their appeal against the 1991 Decision as to the period of equalisation, and accordingly

(b) that on the appeals against the 1991 Decision Mr Jones had no realistic chance of establishing that the decision of the Employment Tribunal was correct and would be driven to accept that in the terms of the letter dated 1 February 1995 equalisation of pensions was only required in respect of employment subsequent to the date of the Barber judgment (i.e. 17 May 1990).

In this respect we cite the headnote in Coloroll Pension Trustees Ltd v Russell [1995] ICR 179 at 180 G which is in the following terms:

"(4) That, for the purpose of claiming equal treatment in the matter of occupational pensions, the direct effect of article 119 could be relied on, both by employees and their survivors, only in relation to benefits payable in respect of periods of service after 17 May 1990, except where a claim had been initiated before that date, and, in the case of benefits not linked length of service, such as a lump sum payment in the event of an employee's death during employment, only where the operative event had occurred after 17 May 1990."

(3) On 13 February 1995 MHA Pensions Ltd wrote to Mr Jones in the following terms:

"Siebe Pension Scheme

To comply with recent European Court of Justice rulings, the Company and the Trustees have equalized benefits for males and females in respect of any pensionable service between 17^th May 1990 and 6^th April 1991.

In your case this means a small increase to your pension as set out below:

1 Additional pension from 1.3.1995 of £39.92 p.a.

2 Arrears which, together with an amount in respect of late payment, total £190.28.

The above figures are, of course, before deductions of tax.

We have instructed the Legal and General to implement these payments and you should be hearing from them shortly."

(Our emphasis)

(4) On 23 February 1995 Mr Jones wrote to Mr Coles in the following terms:

"Without Prejudice

I am responding to your letter of February 1^st and apologise for the long delay in answering due to my absence from home.

I am prepared to withdraw my appeal against the Industrial Tribunal's decision of June 1991 if you'll withdraw yours. However, I have not received any communication from the EAT regarding my appeal and, so far, have not been able to establish if my solicitor has.

Meanwhile thank you for arranging for the extra pension of £39 per annum that I earned from May to September 1990 to be paid immediately. It will not go far towards the approximately £200000 in lost pay and pensions your company has cost me by making me redundant at 60 but it's a step in the right direction and reflects the usual benevolence and fairness of your company."

(Our emphasis)

We pause to comment that Mr Jones' reference to the letter of 1 February is to the letter referred to in subparagraph (2) above.

(5) On 28 February 1995 Mr Coles wrote to Mr Jones in the following terms:

"Thank you for your letter of February 23, 1995.

I confirm that we are prepared to withdraw our appeal on the basis that you withdraw yours.

I look forward to hearing from you when you have had a chance to ascertain the position from your Solicitors but in the meantime I enclose for your information a copy of the latest letter which I have received from the EAT.

I suggest we each write to the EAT withdrawing our respective appeals and I am quite happy to do this on receipt of an 'open' letter from you confirming you are agreeable to this course of action."

...Our emphasis)

We have not seen the latest letter from the EAT referred to in this letter.

(6) On 21 March 1995 Tarran Jones & Co (the Solicitors then acting for Mr Jones) wrote to Mr Coles in the following terms:

"Re: EAT Appeals, Case Nos: 460/91/MAA and 461/91/MAA

We write on behalf of our Client, Mr W.J. Jones, with reference to these pending EAT Appeals.

Our Client is willing for us to indorse his consent to his Appeal being withdrawn provided you similarly consent to the withdrawal of your Appeal; this proposal accords with the suggestion made by you in your letter addressed directly to our Client dated 1^st February 1995.

If matters are to be disposed of in this fashion perhaps one of us should prepare a formal Consent covering both Appeals for signature by the parties and lodging with the EAT Registrar.

We shall look forward to hearing from you please."

(Our emphasis)

(7) On 11 August 1995 Mr Coles wrote to Tarran Jones & Coin the following terms:

"Re: EAT Appeals, Case Nos: 460/91/MMA and 461/91/MAA

I refer to our previous correspondence and enclose a formal consent suitable for lodging with the Employment Appeal Tribunal Registrar.

You will see that I have signed it on behalf of Foxboro and if you approve its content perhaps you would like to sign it on behalf of Mr Jones and send it off to the Registrar."

The enclosure to that letter was signed by Mr Coles and was in the following terms:

"As Solicitors for all parties to the above Appeals we hereby consent to the withdrawal of both Appeals with no order as to costs.

Dated day of 1995

…………………………………….. ………………………………….

Tarran, Jones & Co R P A Coles

Solicitors for Mr W Jones SolicitorforFoxboro International Ltd and Foxboro GB Ltd"

(8) On 25 August 1995 Tarran Jones & Co replied to Mr Coles in the following terms:

"Re: EAT Appeals, Case Nos: 460/91/MAA and 461/91/MAA

Thank you for your letter dated 11^th August, enclosing form of Consent to Withdrawal which we confirm we have signed and sent off to the Registrar."

(9) On 25 August 1995 Tarran Jones & Co wrote to the Employment Appeal in the following terms:

"Re Case Nos: 460/91/MAA and 461/91/MAA

Jones v (1) Foxboro International Ltd (2) Foxboro GB Ltd

We now enclose for your attention Consent to Withdrawal duly signed by the Solicitors for the respective parties, which please file.

This should hopefully see an end to both appeals

9. As a result of that correspondence and its enclosures this Tribunal made two Orders, both are dated 30 August 1995 one is in respect of the appeal made on behalf of Foxboro and the other is in respect of Mr Jones' appeal. These Orders are in identical terms and are as follows:

"UPON THE APPLICATION of the Appellant by letter dated 1^st February 1995 and BY CONSENT

THE TRIBUNAL GIVES LEAVE for the Appeal to be withdrawn and said appeal is thereby dismissed"

We pause to comment that the terms of these orders do not follow either the wording of the consent form or the terms of the correspondence which refer only to withdrawal and not to leave to withdraw, or to dismissal as a consequence of withdrawal or leave to withdraw being granted.

10. As appears therefrom the orders both refer to a "letter from the Appellant dated 1 February 1995". We have not been shown or told of a letter written by Mr Jones dated 1 February 1995.
11. However, as appears above, Mr Coles on behalf of Foxboro, wrote to the Employment Appeal Tribunal on 1 February 1995 enclosing a letter of that date to Mr Jones. In our judgment as a matter of construction of the Order relating to Foxboro' appeal the reference to the letter dated 1 February 1995 is a reference to the letter of that date to the Employment Appeal Tribunal and therefore includes a reference to its enclosure being the letter also dated 1 February 1995 to Mr Jones written by Mr Coles. That letter to Mr Jones contains an offer or a proposal.
12. It seems likely that the reference to the letter of 1 February 1995 in the Order relating to Mr Jones' appeal is in fact to the same letter and therefore also its enclosure.
13. We are primarily concerned on this appeal with the effect of the Order relating to the appeal against the 1991 Decision lodged by Foxboro. However, in our judgment it should be remembered that the order made by this Tribunal dated 30 August 1995 in respect of Mr Jones' appeal against the 1991 Order was in the same terms.
14. Some two months after the making of the Orders dated 30 August 1995 Mr Jones wrote to Mr Coles with a copy to Mr Jones's solicitors Tarran Jones & Co, on 18 October 1995. This letter is in the following terms:

"Regional Office of the Industrial Tribunals

Reference 35142/90/LS/A – Jones v Foxboro International Ltd

Now that we have withdrawn our respective appeals against the decision of the Industrial Tribunal of April 11^th 1991 it is my understanding that the Tribunal's decision therefore still stands. As a consequence you, ie Siebe/Foxboro, should now be paying me an additional pension of approximately £2770 per annum.

The calculation of the additional amount is based on the discriminatory Foxboro Pension Scheme pension being paid for service between Feb 26 1956 and Dec 31 1972 and what a woman would have received from the same scheme at age 60 for service between January 1 1973 and Sept 14 1990. Had I been a woman I would have received a pension of £20,293.38 per annum at 60 (Foxboro's own calculation). I was quoted by Foxboro a pension of £14,893.31 which I took at 60 without prejudice to the outcome of our litigation.

The commuted lump sum which I took at the start of my pension does not affect the additional sum I should now be paid each year or the back payments I am now owed. The latter will amount to approximately £16000 (with appropriate interest but I have not yet had this accurately confirmed by an actuary. In addition it should be formally recorded that the pension payable to my wife in the event of my death will be increased by half the annual increase to be paid to me viz £1385.

I look forward to receiving your confirmation that the appropriate payments will now be made. January 29 1996, my 65^th birthday would seem like a good target date."

(Our emphasis)

The following correspondence ensued:

(1) On 25 October 1995 Mr Coles replied and copied his reply to Tarran Jones & Co in the following terms:

"I acknowledge receipt of your letter of October 18, 1995 which I must confess came as something of a surprise!

The appeals have been withdrawn but this was on the basis clearly set out in my letter of February 1, 1995 that the decision of the European Court in the Coloroll case had superseded the finding of the Industrial Tribunal and that equalisation was only required for the period between the date of the Barber judgment and September 14, 1990 when you left employment. You accepted this (albeit grudgingly) in your letter of February 23, 1995 and this was confirmed by your Solicitors in their letter of March 21, 1995 which states that 'matters are to be disposed of' on the basis set out in my letter of February 1, 1995. Copies of the various letters referred to are enclosed.

This, therefore, gave effect to the final part of the Tribunal's decision, which envisages that the parties will agree the amount payable.

I feel sure that you are and were at all times fully aware of this position.

You have already been given the pension increase due under the law as laid down by the European Court and are, therefore, entitled to nothing more."

(Our emphasis)

(2) On November 22 1995 Mr Jones replied to Mr Coles in the following terms:

Thank you for your letter of Oct. 29 regarding this case. I note your surprise that I should have the gall to state that I believe, in law, you are now obliged to pay me a pension as awarded by the Industrial Tribunal on June 7 1991. The decision of the IT was, incidentally, clear enough; it said nothing about the parties agreeing to the amount payable other than an actuarial agreement on the precise pension I was top be paid in accord with the Tribunal's decision. This decision was that my pension should be the same as a woman's for service since Jan. 1973 and that of the original Foxboro Pension Scheme before that. You even stated this clearly as a point in one of your documents relating to the Appeals.

That a later European court decided to interpret the Barber decision the way it did (iniquitously in my view) gave you the opportunity to go ahead with your appeal with every chance of success. It was you who suggested mutual withdrawal of appeals. No strings were attached by me or my Solicitor in withdrawing my appeal other than that you also withdraw yours. My letter in response to your letter informing me that my pension was to be increased by the trivial amount earned by me between May and September 1990 did no more than thank you for the increase as "being a step in the right direction".

I trust that SIEBE who, in my experience and that of many former colleagues, use the letter of the law to their advantage when it suits them, will not cry "foul" when it is not in their favour!

The only recourse if you do not "grudgingly" pay me the increased pension is for me to go to the County Court to have the IT decision enforced.

We pause to comment that in this letter Mr Jones recognises that Foxboro would have had every chance of success on their appeals and this, in our judgment, confirms the view we have expressed above as to his knowledge of the weight of the respective arguments on the appeals against the 1991 Decision following the Coloroll decision. We also comment that in this letter:

(a) Mr Jones refers to his use of the letter of the law, and

(b) his reference to no strings being attached by him or his solicitor relates to his appeal and does not refer to Mr Coles' letter of 1 February 1995 (see paragraph 8(2) above) and to Mr Jones'solicitors' letter of 21 March 1995 which does refer to that letter from Mr Coles (see paragraph 8(6) above).

(3) The next letter is almost a year later and is dated 17 November 1996 from Mr Jones to Mr Coles. It is in the following terms:

"Re: Mr W J JONES vs Foxboro International Ltd

It is some time since I was last in touch with you on this subject due to some complications in obtaining legal advice. These complications were not related to the case but were due to communication problems between my Solicitor and Counsel.

Counsel's opinion is that Siebe made an elementary but serious mistake in withdrawing their appeal instead of pursuing it at the EAT. This withdrawal was not initiated by me but by you. Indeed I was surprised that your offer of mutual withdrawal was made but saw in it a possible way of obtaining from Siebe some modest recompense for the considerable financial damage they did to me when making me summarily redundant at the age of 59 under terms far worse than was customary at Foxboro. Adding insult to injury, through your captive Pension Trustees, you significantly reduced early pension rates from what had been the Foxboro norm for more than 25 years without consultation.

Since you are a Cambridge Law graduate I believe I was entitled to accept that you gave full consideration to what you were doing in offering mutual withdrawal of appeals against the original IT decision.

I regret that this may now be of personal embarrassment to you. However, what Siebe/Foxboro did to me (and others) in 1990 was within the letter of the law even if mean and vindictive in spirit. Your error gives me the opportunity to use the letter of the law to obtain redress and I feel no conscience or embarrassment in doing so, believing the outcome to be just.

As to your assertion that there is doubt in the Original IT decision as to the basis on which the increased pension awarded to me is to be calculated this seems ludicrous. Indeed, paragraph 4 of your own appeal clearly states the basis. The IT decision states only that the precise actuarial value of the pension needs to be worked out. I shall however be copying this letter to the IT with a request that they now require you to carry out their decision which you decided not to appeal against."

(Our emphasis)

15. Following letters by Mr Jones to the Industrial Tribunal at London (South) that Industrial Tribunal wrote to Mr Jones on 13 June 1997 in the following terms:

"Re: Yours – v – Foxboro International Ltd

Case Number: 35142/90

I acknowledge your letter received at the Tribunals on 11/06/97, which was referred to a Chairman of the Industrial Tribunals.

He confirms that the Industrial Tribunal decision stands, as it has not been overturned on appeal."

16. Later on 1 December 1997 the Industrial Tribunal of London (South) wrote to Mr Jones in the following terms:

"Re: Yourself v Foxboro International Ltd

Foxboro Great Britain Ltd

Case Number: 25142/90

Thank you for your letter of 22 November 1997.

A Chairman has directed that your letters be treated as an application for a remedy hearing in accordance with leave given in the original decision.

It is clear from the Respondent's letter to you of 1 February 1995, that they will argue that they have already adjusted your pension in accordance with the Tribunal's decision and the subsequent Coloroll case and therefore no further sum is due.

You should be prepared to meet this argument. If the Tribunal finds that any further sum is due it is likely that they may wish to order the payment of a lump sum rather than an adjustment to your pension.

Would you please calculate the sum you claim and sent it to the Respondent's 14 days before the hearing.

A notice of hearing will be sent within the next few days."

17. As a consequence of this correspondence from the Industrial Tribunal it held a remedies hearing which resulted in the 1998 Decision.

The Extended Reasons for the 1998 Decision

18. After setting out the issue and the procedural history during which they referred to some of the correspondence we have set out above, the Extended Reasons continue as follows:

"THE SUBMISSIONS FOR THE RESPONDENT

9. Mr Coles submitted that the payments of increased pension satisfied the Tribunal decision, applying the law as at the date of payment. The Applicant by his conduct, his letters, and by not saying that he did not accept what was said by the Respondents, accepted-the position. Therefore the case was concluded.

10. Secondly, Mr Coles argued that the liberty to apply on what pension should be payable was to be considered by the application of the law as it now stands.

11. Thirdly, Mr Coles argued that the correspondence created an expressed contract of compromise. Section 77(3) of the Sex Discrimination Act 1975, in respect of compromised terms which are unenforceable, did not exclude a compromise agreement in this situation.

12. Fourthly, Mr Coles argued that there was implied into the agreement on mutual withdrawal of appeals a term that the Tribunal case would not proceed.

13. Finally, Mr Coles contended that the Applicant was fully aware of the Respondent's belief that there was an end to the proceedings. He deliberately kept quiet to leave him the Tribunal decision which he could then pursue. He was leading the Respondents into a trap. That was why nothing was said until six weeks after the withdrawals. It would be inequitable to award the Applicant any sum. so that he profited from his inequitable conduct, and Mr Cotes invoked the doctrine of equitable Estoppel.

THE SUBMISSIONS FOR THE APPLICANT

14. Mr Jones argued that this hearing was to clarify the original decision, not to appeal against it. The Respondent should have realised how to proceed with the appeal. It was surprising that they should suggest that he had 'conned' them given that they were a company with substantial resources. His letter of 23 February had been only a partial acceptance. His solicitor had agreed only to the mutual withdrawal of appeals and no more. The law was correctly applied by the Tribunal at the time of the decision in 1991. This was a hearing to calculate, and the basis of that calculation was stated in the last paragraph of the 1991 decision.

THE CONCLUSIONS OF THE TRIBUNAL

15 We firstly consider Mr Coles' third and fourth argument, which are on the common theme that there was an agreement that the Tribunal case would not proceed any further, and was agreed to have come to an end. We have referred to the course of correspondence between the parties. We find no evidence in that correspondence sufficient to satisfy us that there was any such compromise agreement or agreement with the implied term for which Mr Coles contends. There was simply an agreement to withdraw the two appeals. Although there was correspondence which informed Mr Jones that his pension was being increased, it did no more than state that the company was implementing what it understood to be its legal duty. It was not conditional upon any agreement by Mr Jones.

16 We cannot accept the argument based upon equitable Estoppel, which is in turn based upon the Applicant allegedly trapping the Respondents by his silence. The Respondents were corresponding partly with the Applicant in person and partly with his solicitors. They themselves have very substantial resources. This matter was conducted by Mr Coles who is a lawyer. We do not see that there was any representation which emanated from the Applicant or his solicitor upon which the Respondents can be said to have relied. These were parties with access to legal advice dealing with each other at arms length concerning pending litigation. Each of them carried its own responsibility for considering the consequences of its actions or omissions.

17 We finally turn to consider the first and second arguments of Mr Coles. They are essentially two parts of the same argument, that the law to be applied is that which now exists, and the Respondents have satisfied their obligations. There is therefore nothing further to be awarded. The Tribunal must therefore decide whether the law to be applied is that which was likely to have been applied in June 1991, or whether it should be the law which now is applied, and indeed has clearly been applied to Mr Jones' pension.

18 The litigation involving the Coloroll pension trustees was underway before the Tribunal decision in 1991. The reference to the European Court of Justice in that case was on the 31 July 1990 (see the law report at (1995) ICR 179 at page 189 H). The judgment of the European Court was given on the 28 September 1994. It expressly confirmed that temporal limitation on the affects of the Barber judgment of 1990, ie that there could be reliance only in relation to benefits payable in respect of periods of service subsequent to 17 May 1990, subject to the exception in favour of workers or those claiming under them who have, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law (see ICR at page 228G).

19 The legal system applied in the Courts and Tribunals of England and Wales applies laws which emanate essentially from two sources. Firstly, there is legislation, including subordinate legislation, in respect of which a date is given for the coming into effect of that legislation. Secondly, there is the law which is found by looking at previous decisions, ie case law or precedents. Courts declare what they find to be the law on the basis of statements of principle in previous cases. Even where a Court indicates that it is departing from a position which had previously been understood to be the proper state of legal principle in a particular subject, it will not, in all probability, admit to changing the law as such, but will rather proceed on the basis that it is restoring the law to what it should have been: ie it is a re-interpretation.

20. In the employment law field the way in which the law is found and applied is exemplified by two cases. In Biggs v Somerset County Council [19961 ICR 364, the applicant was a part-time teacher who was dismissed in 1976. In 1994, she became aware of the decision which allowed part-time employees to present complaints of unfair dismissal notwithstanding the statutory qualifying threshold. However, the Industrial Tribunal dismissed her complaint because it had not been presented within the three months time limit which ran from the date of her dismissal. It was held by the Court of Appeal that her mistake as to her rights was a mistake of law. It would be contrary to the principle of legal certainty to allow past transactions to be re-opened and limitation periods to be circumvented because the existing law at the relevant time had not then been explained or fully understood. As a matter of law, her claim could have been advanced in 1976. As Lord Justice Neill put it (at page 374): 'At that time (in 1976) it had been the generally accepted doctrine for centuries that Courts and Tribunals were required to apply the law as passed by parliament. The fact that after 1 January 1973 Acts of Parliament and other United Kingdom legislation might have to yield to provisions determined by a different and superior system of law was, I suspect, fully appreciated only by a comparatively small number of people. But in my view it would be contrary to the principle of legal certainty to allow past transactions to be re-opened and limitation periods to be circumvented because the existing law at the relevant time had not yet been explained or had not been fully understood'.

21. The other case to which we refer is Harvey v Institute of the Motor Industry (No. 2) [1995] IRLR 417. In that case, the Tribunal made a finding in favour of the Applicant that she had suffered discrimination on the grounds of sex and the decision was issued on 1 March 1993. There was a hearing on remedies on 26 October and the decision was reserved. The Sex Discrimination and Equal Pay (Remedies) Regulations 1993, which remove the upper limit on compensation for sex discrimination, came into force on 22 November, before the decision on remedy was promulgated. It was held by the Employment Appeal Tribunal that the correct construction of the remedies regulations was that the removal of the statutory limit on compensation took effect in relation to all the awards made from 22 November 1993, the date of commencement of the Regulations, irrespective of the dates when cases which led to those awards had been instituted or heard. We refer to this decision because it shows clearly that in respect of determining the application of the regulations, the Appeal Tribunal was concerned to look at the specific date for implementation, i.e. the commencement of the effect of the Regulations. Insofar as there was an ambiguity in respect of that date, it had regard to the purpose for which the regulations were introduced.

22. The position arrived at as a result of the Barber and Coloroll litigation in the European Court straddles these two areas. On the one hand, they constitute case law, laying down the principles by which the European legislation is to be interpreted. On the other hand, for obvious reasons of practical convenience, and the avoidance of financial chaos in respect of pensions, time limits were impost on the effect of the European Court's decision June, 1998.

23. In our judgement, the law to be applied to the issue of remedy in the case before us is that which now exists. We can find no basis of legal principle for accepting the argument put forward by Mr Jones.

24. It follows that Mr Jones is not entitled to any further remedy in any financial form, because his pension has been previously adjusted.

Rules and procedure of the Employment Appeal Tribunal

19. So far as we are aware when the Orders dated 30 August 1995 were made there were no relevant rules of procedure. For completeness we mention that the Employment Appeal Tribunal Rules still do not contain any relevant provision but the Employment Appeal Tribunal Practice Direction which came into force on 15 April 1996 and superseded the earlier Practice Directions issued on 17 February 1981 and 15 July 1985 provides in paragraph 13, for a procedure to be followed when parties wish to dispose of appeals by consent. That Rule is in the following terms:

"13 Disposal of appeals by consent

(1) An Appellant who wishes to abandon or withdraw an appeal should notify the Respondent and the EAT immediately. If a settlement is reached the parties should inform the EAT as soon as possible.

(2) The Appellant should submit to the EAT a letter signed by the Appellant or on the Appellant's behalf and signed also by, or on behalf of, the Respondent, asking the EAT for leave to withdraw the appeal and to make a consent order in the form of an attached draft signed by both parties dismissing the appeal, together with any other agreed order.

(3) If the Respondent does not agree to the proposed order (where, for example, the Respondent wishes to apply for an order for costs against the Appellant) the EAT should be informed. In such cases it will be necessary to fix an oral hearing to determine the outstanding matters in dispute between the parties.

(4) If the parties reach an agreement that the appeal should be allowed by consent and that an order made by the Industrial Tribunal should be reversed or varied or the matter remitted to the Industrial Tribunal on the ground that the decision contains an error of law, it is usually necessary for the matter to be heard by the EAT to determine whether there is a good reason for making the order which both parties agree should be made. In order to save costs, it may be appropriate for the Appellant or a representative only to attend to argue the case for allowing the appeal and making the order that the parties wish the EAT to make.

(5) If the application for leave to withdraw an appeal is made close to the hearing date the EAT may require the attendance of the Appellant and/or a representative to explain the reasons for delay in making a decision not to pursue the appeal."

20. Like the Employment Tribunal the Employment Appeal Tribunal has a power of review, it is in Rule 33 of the Employment Tribunal Rules 1993 and is in the following terms:

(1) The Appeal Tribunal may, either of its own motion or on application review any order made by it and may, on such review, revoke or vary that order on the grounds that -

(a) the order was wrongly made as the result of an error on the part of the Tribunal or its staff;

(b) a party did not receive proper notice of the proceedings leading to the order; or

(c) the interests of justice require such review.

(2) An application under paragraph (1) above shall be made within 14 days of the date of the order.

21. No application has been made under Rule 33. Any such application would be well out of time. But of themselves neither of these points mean that of our own motion we could not, or should not, initiate a review of the Orders dated 30 August 1995.
22. Rule 29 of the Employment Tribunal Rules 1993 gives this Tribunal the ability to hear oral evidence and section 35 of the Employment Tribunals Act 1996 provides that for the purpose of disposing of an appeal this Tribunal may exercise any of the powers of the body or officer from whom the appeal was brought (here the Employment Tribunal).

Further Background

23. This Tribunal only retains its files for three years and it therefore no longer holds any document relating to the appeals against the 1991 Decision. The documents we have referred to have been supplied by the parties.
24. Tarran Jones & Co have not represented Mr Jones on this appeal and did not represent him before the Employment Tribunal that made the 1998 Decision.

The Appellant's (Mr Jones') Case in outline

25. Briefly the Appellant's (Mr Jones') case is that:

(1) He is entitled to enforce the 1991 Decision of the Employment Tribunal.

(2) The orders made by this Tribunal dated 30 August 1995 simply had the effect of dismissing the appeals and therefore left the 1991 Decision in full effect.

(3) The only agreement reached in 1995 concerning the withdrawal of the appeals was that there should be mutual withdrawal of the appeals.

(4) If there was any agreement in 1995 "settling" Mr Jones' claim it cannot be relied on having regard to s. 77 Sex Discrimination Act 1975 with the result that the appeals are withdrawn and the 1991 Decision remains in full force and effect.

26. We agree that the effect of an order made by this Tribunal giving leave to withdraw and (as the orders made by this Tribunal dated 30 August 1995 state) thereby dismissing an appeal, or as a consequence dismissing an appeal, is that in the absence of an enforceable agreement to the contrary it leaves the order of the Employment Tribunal appealed against in full force and effect.
27. At heart Mr Jones' case is one based on enforcement of the 1991 Decision, res judicata and issue estoppel.

Foxboro's position in outline

28. Foxboro argued that the 1998 Decision was correct but also cross appealed against the findings reached in the 1998 Decision that "there was simply an agreement to withdraw the two appeals". In addition Foxboro sought to introduce additional legal arguments to support the 1998 Decision which they accepted had not been put to the Employment Tribunal (a) on the construction of the orders made by this Tribunal dated 30 August 1995, (b) based on estoppel by convention, and (c) based on unilateral mistake. Foxboro sought to introduce the cross appeal and these additional arguments by way of amendment to their Answer and Cross Appeal.

The amendments and additional arguments

29. Mr Jones argued that we should not allow Foxboro to make such amendments and in particular that we should not allow them to advance and rely on these additional arguments. It was agreed between Counsel, in our judgment correctly, that we should not deal with amendment (and what arguments Foxboro could advance) as a preliminary issue and therefore we heard argument on all the points raised including whether Foxboro should be allowed to pursue some of them. We shall return to the issue whether Foxboro should be allowed to amend to argue the cross appeal (on a point argued below but not included in the original answer served by Foxboro) and the additional points.

The 1998 Decision Generally

30. As appears from the Extended Reasons for the 1998 Decision the Employment Tribunal:

(a) say that together the first and second arguments advanced on behalf of Foxboro are arguments that the law to be applied is that which now exists, and

(b) purport to deal with the third and fourth arguments advanced by Foxboro separately from the first two arguments.

They conclude on that interpretation of Foxboro's first two arguments (as recorded by them) that:

In our judgement, the law to be applied to the issue of remedy in the case before us is that which now exists. We can find no basis of legal principle for accepting the argument put forward by Mr Jones.

On its face this finding therefore includes a rejection of Mr Jones' argument, as recorded by them, which included the points that the hearing was not to appeal against the 1991 Decision but was to calculate what was due to him.

31. In our judgment the reasoning of the Employment Tribunal does not found a proper rejection of Mr Jones' argument that the basis of the calculation of his pension was stated in the 1991 Decision and thus that he is entitled to rely on it. In our judgment:

(a) the Employment Tribunal have erred in law by failing to expressly address the question why Mr Jones is not entitled to rely on the 1991 Decision and why it does not set out the basis of the calculation of his pension, and

(b) the case referred to by Employment Tribunal in paragraph 21 of their Extended Reasons (Harvey v Institute of the Motor Industry (No 2) [1995] IRLR 417) does not address this question or show why the approach referred to in paragraph 20 of the Extended Reasons by reference to Biggs v Somerset County Council [1996] ICR 364 should not apply so as to allow Mr Jones to rely on the 1991 Decision following the orders made by this Tribunal dated 30 August 1995. This is because in the Harvey case there was no existing order on remedy, or as to how the entitlement of the claimant should be calculated, whereas here there was.

32. These errors of law mean that the Employment Tribunal erred in law:

(a) in not properly considering Mr Jones' case by asking themselves why he was not permitted to rely on the 1991 Decision and why the principles of res judicata and issue estoppel did not prevent Foxboro from relying on the Coloroll decision, and thus

(b) in not properly considering the central issue between the parties.

Further comment on the approach of the Employment Tribunal

33. We are unclear why the Employment Tribunal classified the first two arguments advanced by Foxboro as arguments that the law to be applied is that which now exists but in our judgment this classification and treatment;

(a) is part of, or leads to, the errors referred to above in that by making it the Employment Tribunal formulated a question which diverted attention from the issue between the parties as to whether Mr Jones could rely on and enforce the 1991 Decision, and in particular the extent of the agreement reached in the correspondence in 1995 assessed against the background thereto, and

(b) contributed to the limited consideration by the Employment Tribunal of the issue whether Mr Jones was estopped from relying on the 1991 Decision albeit, as appears below, another factor which lead to this result was the conclusion the Employment Tribunal reached on the construction of the correspondence in 1995 as to what was agreed (and therefore understood) by the parties.

in that they considered only an argument that Mr Jones trapped Foxboro by his silence and whether his silence gave rise to a representation and did not consider whether an estoppel based on a common understanding arose (i.e. estoppel by convention).

34. In considering the estoppel argument expressly raised before them the Employment Tribunal in the Extended Reasons for the 1998 Decision expressly treat Foxboro's third and fourth arguments together and separately from their first two arguments but in our judgment a fair reading of the Extended Reasons demonstrates that they must have considered the first argument together with the third and fourth arguments because it is the first argument that raises the issue of Mr Jones's conduct and thus any representation he made by his silence. Also the conclusion reached on the extent of the express and implied agreement reached in correspondence in 1995 has an effect on the arguments put and the nature of any estoppel because:

(a) if the agreement alleged by Foxboro (or a similar one) is found to have been concluded arguments on estoppel may become academic but if this is not the case (e.g. because of s. 77 Sex Discrimination Act and/or the continued existence of the 1991 Decision and the principle of issue estoppel) there is an overlap, or at least the potential for an overlap, between (i) the points made and considered as to the extent of the express and implied agreement reached in 1995, and (ii) arguments based on estoppels classified as estoppel by representation (express or by silence) and estoppel by convention, but

(b) if the extent of the agreement is that found by the Employment Tribunal the estoppel arguments have to be put from a different base because there is a real difference between (i) a consideration of whether in all the circumstances a party is estopped on the basis of conduct based on a common understanding or representation when a "settlement agreement" has been reached, and (ii) a consideration of whether a party is estopped by representation from silence when such an agreement has not been reached which is the way in which estoppel was considered by the Employment Tribunal and amounted to a consideration whether Mr Jones "conned" Foxboro (see paragraph 14 of the Extended Reasons).

The 1998 Decision that Mr Jones could not rely on the 1991 Decision

35. For the reasons given above in our judgment the Employment Tribunal erred in law in reaching that decision and therefore we should set it aside.

The next stage

36. This is whether we should remit to an Employment Tribunal or decide the case ourselves.
37. Mr Jones urged us to decide the case ourselves. The basis of his argument was that the position was clear having regard to (i) the findings of the Employment Tribunal, which it was submitted we could not, or should not, overturn, and (ii) the documents. Alternatively it was submitted that if we allowed Foxboro to advance additional arguments based on estoppel or unilateral mistake we should not decide the case on the basis of those arguments without giving Mr Jones the opportunity to give oral evidence.
38. Foxboro also submitted that we should decide the case ourselves. They did so on the basis that they submitted that all the arguments could be dealt with on the documents.
39. In our judgment in determining the appeals (as opposed to considering, or our own motion, a review of the orders made by this Tribunal dated 30 August 1995) in this case we probably cannot, and in any event should not, hear oral evidence to resolve any factual dispute between the parties. This is because the Employment Tribunal is the statutory fact finding body and our power to hear evidence should not be used to take over or usurp that function. Further here some of the disputes go to the state of mind of Mr Jones and Mr Coles and in any event the oral evidence would have to be fairly extensive and would not be confined to a short and self contained issue or dispute. Different issues arise on a possible review and we return to our power of review later in this judgment.
40. In our judgment the starting point is for us to consider whether, and if so what, issues can be decided properly and fairly without hearing any oral evidence and then whether we should entertain grounds of appeal which, if successful, would mean that we should remit to an Employment Tribunal because oral evidence is needed to resolve them fairly, or for some other reason.

The Central Point

41. As we have indicated this is whether Mr Jones can, as he asserts, rely on the 1991 Decision, and thus on the principles of res judicata and issue estoppel.
42. Mr Jones' argument is simple. It is that the 1991 Decision was made and the orders of this Tribunal dated 30 August 1995 leave it in place and binding between the parties. His case is therefore that he is entitled to enforce the 1991 Decision notwithstanding that it does not accord with the law as determined by the Coloroll decision. He asserts that the position is effectively the same as the position would have been if there had been no appeal against the 1991 Decision.
43. To defeat this argument Foxboro have to show that by reason of the orders made by this Tribunal dated 30 August 1995 (or one of them), or by agreement, or estoppel Mr Jones is not allowed to rely on the 1991 Decision.
44. In our judgment the best starting point in determining these rival positions is to consider what was expressly and impliedly agreed in and by the 1995 correspondence.

The Agreement reached in and by the 1995 correspondence

45. It was common ground that the agreement leading to and founding the orders made by this Tribunal dated 30 August 1995 was reached in correspondence and there was no relevant discussion. It follows that the extent of the agreement can be, and indeed should be, decided without reference to oral evidence.
46. It was argued on behalf of Mr Jones that it was not open to us to interfere with the conclusions of the Employment Tribunal that there was simply an agreement to withdraw the two appeals on the basis that this was a finding of fact. We do not agree because:

(a) as the agreement is contained solely in the correspondence its terms and extent are based on the true construction thereof and that is a matter of law (see Davies v Presbyterian Church of Wales [1986] ICR 280 and Carmichael v National Power Plc [1999] ICR 1226 at 1232D to 1233C), and

(b) in any event if the terms and extent of the agreement are not matters of law but of fact in reaching their conclusion the Employment Tribunal erred in law in that either in their consideration of the correspondence they failed to take properly into account the factual background and matrix, or they failed to adequately explain how they had done so (see for example Meek v City of Birmingham District Council [1987] IRLR 250 in particular at 251).

It is well established that when a court or tribunal is construing a written agreement such as that reached between the parties in this case in 1995 and thus the relevant contractual documents (here the correspondence) to determine the meaning and extent of the agreement it should place itself in thought in the same factual matrix as that in which the parties were (for example see Reardon Smith Line v Hensen-Tangen [1975] 1 WLR 989 at 995G, 996 E/F and 997C/D).

47. Here the relevant factual background known to both parties was that:

(a) they had agreed that the appeals against the 1991 Decision should be stayed pending the outcome of the Coloroll case which both parties knew was relevant to, and could well be determinative of, issues in the appeals and in particular of the central issue therein namely the date from which the equalisation of Mr Jones' pension entitlement was to be calculated, and

(b) the Coloroll case had been decided.

48. The correspondence referred to in paragraph 8 hereof, and in particular the letters referred to in paragraphs 8(2), (4), (5) and (6) should be construed in the light of that background. In our judgment, having regard thereto:

(a) by the letter from his solicitors dated 21 March 1995 Mr Jones was accepting the proposal or offer contained in the letter dated 1 February 1995 written by Mr Coles to Mr Jones, and

(b) that proposal or offer was not simply that there should be a mutual withdrawal of the appeals but was an offer of proposal that there should be such a withdrawal on the basis set out in the letter dated 1 February in the following terms:

As you are probably aware the judgment in the Coloroll case was rendered last year and decided categorically that equalisation of pensions was only required in respect of employment subsequent to the date of the Barber Judgment ie 17^th May, 1990.

Therefore, equalisation in your case only applies in respect of the period from 27^th May, 1990 until 14^th September, 1990 when you left employment. I confirm that the Trustees have already agreed that your pension should be increased to reflect this and the increase will be implemented shortly.

In our judgment this conclusion flows from the background known to both the parties, and from the language used in the next paragraph of the letter which (with our emphasis) was in the following terms:

In these circumstances can I suggest that we each withdraw our appeal.

The letter of 21 March 1995 refers expressly to a letter dated 1 February 1995 and albeit that it uses the phrase "this proposal accords with the suggestion made in your letter ----- dated 1 February 1995" and does not in more express terms accept the proposal or offer made in the letter dated 1 February 1995, in our judgment a natural reading of the letter is that it does accept that proposal or offer.

49. In our judgment on the true construction the letter from Mr Coles to Mr Jones dated 1 February 1995:

(i) it is asserting that the Coloroll decision is determinative of the issue as to whether Mr Jones is entitled to an equalisation of his pension and as to the date from which that equalisation is to be calculated and therefore of the appeals, and

(ii) the express proposal or offer contained therein is that Mr Jones would be paid in accordance with the Coloroll decision and thus on the basis that the equalisation of his pension would be calculated in respect of the period from 17 May to 14 September 1990.

We add that in our judgment the reference to 27 May 1990 in the second quoted paragraph is a typing error and this is confirmed by the letter from MHA Pensions Ltd referred to in paragraph 8(3) above and the fact that before us and the Employment Tribunal no point was taken on this reference to 27 May and Foxboro proceeded on the basis that the relevant date was 17 May 1990.

50. It follows in our judgment the agreement reached in the correspondence was that the appeals would be withdrawn on the basis that:

(i) the Coloroll decision was determinative of the issue as to whether Mr Jones was entitled to an equalisation of his pension and as to the date from which that equalisation was to be calculated and therefore of the appeals, and

(ii) Mr Jones would be paid in accordance the Coloroll decision and thus on the basis of its effect as set out in the letter of 1 February 1995, namely that the equalisation of his pension would be calculated in respect of the period from 17 May to 14 September 1990.

51. We add that in reaching the above conclusions we have had regard to Mr Jones' letter headed "without prejudice" dated 23 February 1995 and the reply thereto from Mr Coles dated 28 February 1995 which refers simply to a mutual withdrawal. As to these letters we repeat the comment made in paragraph 14(2)(b). Also in our judgment (i) the meaning and effect (or intended effect) of the last paragraph of Mr Jones' letter dated 23 February 1995 set out in paragraph 8(4) is not clear, and (ii) in any event it does not specifically address the letter from Mr Coles dated 1 February 1995 and thus the proposal, or offer, therein. Further in our judgment this exchange of correspondence is overtaken by the letter from Mr Jones' solicitors dated 21 March 1995.
52. Further in our judgment either:

(a) the agreement contained in the correspondence amounts to a variation of the 1991 Decision by changing the date referred to in paragraph 9 of the Extended Reasons (and thus the decision) from 1 January 1973 to 17 May 1990, or

(b) it is an implied term of that agreement that neither of the parties would seek to rely on the method of calculation, and thus the date of 1 January 1973, contained in the 1991 Decision in calculating the equalisation of Mr Jones' pension and thus his pension entitlement.

As to point (b) if the agreement does not amount to a variation of the 1991 Decision that order and the agreement would be in conflict, and in our judgment this term is to be implied to give efficacy to the agreement and as a matter of obvious inference (see Chitty on Contracts Vol. 1 paragraphs 13- 005 to 007).

Section 77 Sex Discrimination Act

53. A point made and relied on by Mr Jones in support of his argument based on the orders dismissing the appeals made by this Tribunal dated 30 August 1995 was that once those orders had been made the rights and position of the parties was determined by their effect. In support of this argument his Counsel referred us to Jenkins v Livesey [1985] AC 424 at 435 G, Barder v Calouri [1988] 1 AC 20 at 40 D/E and to Times Newspapers v Fitt [1981 ICR 637 at 643 A/E. We agree that unless and until an order of the court is set aside, or superseded by effective agreement, it is the order that determines the rights and position of the parties to the relevant proceedings.
54. In our judgment this applies whether or not an order is made by consent and therefore it applies to the 1991 Decision as well as to the orders dismissing the appeals. Indeed it is Mr Jones' case that his rights against Foxboro are determined and set by the 1991 Decision rather than the application of the statutes and agreements relied on by the Employment Tribunal in making that order and it therefore does not matter that the 1991 Decision does not accord with the underlying law as declared and decided in the later Coloroll case. We agree that if Mr Jones is entitled to rely on the 1991 Decision that this is the case because it is contrary to the principle of legal certainty and finality to allow past transactions to be re-opened, limitation periods circumvented or time limits for appeal to be extended simply because the existing law at the relevant time had not yet been explained or properly understood (see for example Biggs v Somerset County Council[1996] ICR 364 at 374D.
55. Mr Jones relied on s. 77(3) Sex Discrimination Act which provides as follows:

(3) A term in a contract which purports to exclude or limit any provision of this Act or the Equal Pay Act 1970 is unenforceable by any person in whose favour the term would operate apart from this subsection

and it was (in our judgment correctly) common ground that the application of s. 77(3) was not excluded by the application of s. 77(4).

56. It was argued that if the agreement reached in 1995 was not simply for mutual withdrawal of the appeals the orders for dismissal remained in place and were effective but the rest of the agreement was unenforceable by Foxboro by virtue of s 77(3).
57. We pause to comment that the unenforceability of such terms may have rendered the remainder of the contract unenforceable for lack of consideration but here the part of the agreement leading to the orders dismissing the appeals has been performed and those orders remain in place and are effective until set aside (see again paragraph 53 above).
58. Given that (i) the appeals were not allowed and the 1991 Decision was not set aside, and (ii) following the making of the 1991 Decision Mr Jones' rights were based on and governed by the 1991 Decision the question arises whether all, or some of, the terms of the remainder of the agreement that we have found was reached in 1995 "purport to exclude any provision of the Sex Discrimination Act or the Equal Pay Act". We accept that the terms of an agreement settling Mr Jones original claim would be such terms, or such an agreement.
59. This question needs to be considered on the alternative analyses of the agreement reached in 1995 referred to in paragraph 52 (a) and (b).
60. On the basis that the agreement amounted to a variation of the 1991 Decision, in our judgment it was a settlement of what Mr Jones could claim under the 1991 Decision and therefore:

(a) excluded or purported to vary (or limit or exclude) terms of the 1991 Decision of the Employment Tribunal, and did not

(b) exclude or limit (or purport to exclude or limit) any provision of the Sex Discrimination Act or the Equal Pay Act,

and therefore it is not caught by s. 77(3).

61. On that analysis Mr Jones has been, and is being, paid his full entitlement.
62. On the basis that the agreement reached in 1995 as to what Mr Jones was to be paid is treated as a settlement of his claims under provisions of the Sex Discrimination Act and/or the Equal Pay Act with an implied term that neither of the parties would seek to rely on the method of calculation, and thus the date of 1 January 1973, contained in the 1991 Decision in calculating the equalisation of Mr Jones' pension and thus his pension entitlement, in our judgment that implied term:

(a) is not caught by s. 77(3) because its effect is to enable Mr Jones' entitlement to be calculated on the basis of the correct interpretation of the relevant statutory provisions following the decision in the Coloroll case, and

(b) remains effective albeit that on this basis the part of the agreement as to the effect of the Coloroll decision and thus the basis of calculation of Mr Jones' pension entitlement would be caught and rendered unenforceable by s. 77(3) as a settlement of his claim. In our judgment this is because the kernel of the agreement reached in 1995 and the consideration for the withdrawal and dismissal of the appeals was that the Coloroll decision should be applied in calculating Mr Jones' pension in place of the method of calculation referred to in the 1991 Decision.

63. We pause to add that if an issue had arisen on calculation or enforcement of the 1991 Decision as varied, or on the basis that there was an implied term that the 1991 Decision could not be enforced, in our judgment Foxboro could not have prevented Mr Jones from having his entitlement assessed by the Employment Tribunal on a remedies hearing. Further we note that there is no appeal by Mr Jones against the 1998 Decision on the alternative basis that if the Employment Tribunal were correct to assess his entitlement on the basis of the law as it has now been explained by the Coloroll decision (which is what the Employment Tribunal did) their decision that Mr Jones has been, and is being, paid his full entitlement is wrong.
64. It follows that if the correct analysis of the agreement reached in 1995 is that set out in paragraph 62 above (which has the result that the agreement as to what Mr Jones should be paid is and was unenforceable but Mr Jones is prevented from relying on the method of calculation set out in the 1991 Decision) the unenforceable part of the agreement as to calculation and amount has in fact been performed, and further or alternatively that performance accords with the 1998 Decision as to Mr Jones' entitlement. In our judgment the 1998 Decision of the Employment Tribunal accords with the Coloroll decision.
65. The above approach to the issues that arise in connection with s. 77 Sex Discrimination Act does not seek to construe the orders for dismissal made by this Tribunal as anything other than orders dismissing both appeals (and thus for example as an order dismissing Mr Jones' appeal and allowing Foxboro's appeal, or as orders allowing both appeals). In our judgment even with the flexibility of approach contained in ICS v West Bromwich B.S. [1998] 1 WLR 896 and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 (which were relied on by Foxboro) the orders made by this Tribunal dated 30 August 1995 cannot be so construed, and the agreement underlying them cannot be so construed. The relevant term of the agreement was that both appeals were to be withdrawn.

An alternative approach

66. If the above approach and conclusion as to the application of s. 77 Sex Discrimination Act is wrong an alternative approach is that the underlying agreement is enforceable because it is incorporated into and forms part of the orders made by this Tribunal dated 30 August 1995. This approach also accepts that these orders of this Tribunal are orders for dismissal and proceeds on the basis that the underlying agreement (or the part of it that precludes reliance on the method and date of calculation contained in the 1991 Decision) would be caught by s. 77(3) if it was a "free standing" agreement and thus one that was not incorporated in, and thus part of, an order. This alternative approach gains support from Times Newspapers v Fitt [1981] ICR 637 at 643E where this Tribunal state:

Section 140 is designed to protect employees from entering into perhaps misguided bargains before their claim is heard by the industrial tribunal. But once the case has come before the industrial tribunal and been disposed of , the purpose of section 140 is exhausted.

and from Carter v Reiner Moritz Ltd [1997] ICR 881 at 886C where this Tribunal state in respect of arguments set out at 885H to 886B:

The court retains a discretion as to whether it will make the order sought. In our judgment, section 140 of the Act of 1978 does not restrict the parties from reaching an agreement albeit that it has to be considered by the court and will not become enforceable unless and until an order of the court has been made. In our judgment the cross appeal succeeds.

(We note that this Tribunal reached a similar result by a different route in Courage Take Home Trade Ltd v Keys [1986] ICR 874 and we comment that in our judgment the remark of this Tribunal in The Milestone School of English Ltd v Leakey [1982] IRLR 3 at paragraph 18 is restricted to s. 140(1)(b) of the 1978 Act which is the sub-section that was held to be relevant in the Courage case. There is no equivalent subsection in s. 77 Sex Discrimination Act.)

67. Problems with this approach are that (a) this Tribunal would not have given the orders dated 30 August 1995 any judicial consideration, and (b) the agreement is not set out specifically in those orders and has to be incorporated by (i) the reference therein to the letter of 1 February 1995 to this Tribunal, and (ii) the fact that that letter refers to and encloses the letter to Mr Jones of the same date (and naturally does not refer to later correspondence and in particular the letter of 21 March 1995 from the solicitors then acting for Mr Jones).
68. Notwithstanding these problems in our judgment Mr Jones is precluded from relying on s. 77 on the basis of this alternative approach. As to the first problem this Tribunal did make the orders and without them the appeals would still be in existence. As to the second problem in our judgment the letter to this Tribunal dated 1 February 1995 by its enclosure informs this Tribunal of the offer being made and the fact that this Tribunal refer to that letter in the orders dated 30 August 1995 (although in the order made in respect of Mr Jones' appeal he did not write a letter of that date to the Tribunal) rather than the formal consent form (see paragraph 8(7) above) shows that the understanding of the person who drew the orders as a result of the further communications with this Tribunal was that the letter of 1 February 1995 and its enclosure identified the agreement pursuant to which the parties agreed to the appeals being withdrawn and thus the consent referred to in the orders. The orders gave "leave for the Appeal to be withdrawn" and provided that "the said appeal is thereby dismissed". These are acts by this Tribunal which do not follow precisely the consent form for withdrawal. In our judgment the approach in the ICS and Mannai cases supports this construction of the orders.
69. We deal below with the point whether Foxboro should be entitled to introduce arguments based on the construction of the orders of this Tribunal dated 30 August 1995 at this stage.

The position reached on the above reasoning

70. In our judgment for the reasons expressed above we have concluded that the 1998 Decision is right for the wrong reasons. Our reasons are based on the argument raised before the Employment Tribunal as to the nature and extent of the agreement reached in correspondence in 1995, and thus the documents. In our judgment this has the consequence that on the basis of those reasons this case can be decided fairly and properly without hearing any oral evidence and therefore the question of remission to enable the Employment Tribunal to consider such evidence does not arise.
71. In these circumstances in our judgment what we should do is:

(a) allow the appeal,

(b) decide the case ourselves by rejecting Mr Jones' argument that he is entitled to enforce the 1991 Decision,

(c) order and declare that for the purpose of claiming equal treatment in the matter of his pension Mr Jones can only rely on the direct effect of Article 119 (and thus that men and women should receive equal pay for equal work) in relation to benefits payable in respect of periods of service after 17 May 1990, and

(d) give the parties liberty to apply to this Tribunal for directions as to how any dispute as to the quantification of Mr Jones' pension pursuant to the order and declaration contained in sub-paragraph (c) above should be determined.

We understand that that there is no dispute as to the figures relating to the quantification of Mr Jones' pension.

Estoppel, unilateral mistake and/or review of the orders of this Tribunal dismissing the earlier appeals

72. We heard argument on these matters and we shall therefore deal with them on the assumption or hypothesis that the conclusion we have reached above on the application of s. 77 Sex Discrimination Act is wrong because, for example:

(a) it is based on too literal an approach to s. 77(3) and on a more purposive approach the correct view is that as the 1991 Decision is based on provisions of the Sex Discrimination Act and/or the Equal Pay Act (albeit an incorrect interpretation and application of them) a variation of the 1991 Decision, or an agreement not to rely on the basis of calculation contained in the 1991 Decision, should be treated as one that settles Mr Jones' claims based on those Acts, or one which otherwise excludes or limits provisions of those Acts, or

(b) the implied term that neither of the parties would seek to rely on the method of calculation (and thus the date of 1 January 1973) contained in the 1991 Decision in calculating and deciding of the equalisation of Mr Jones' pension cannot stand if the term as to how the Coloroll decision is to be applied is caught by s. 77(3).

73. We add that in our judgment our reasoning and conclusions in respect of the matters included in the above heading would apply if contrary to our view s. 77(1) applied to render terms of the agreement reached in 1995 void rather than unenforceable pursuant to s. 77(3) (and we add as we understood it neither side argued before us that s. 77(1) applied).
74. The estoppel arguments under this heading found arguments that:

(a) Mr Jones cannot rely on s. 77 Sex Discrimination Act, and such an argument would be a classic example of an estoppel preventing a party from relying on a statutory provision, and

(b) Mr Jones cannot rely on the 1991 Decision and the principles of res judicata and issue estoppel.

75. The principles of res judicata and issue estoppel have been considered by the House of Lords in Arnold v National Westminster Bank Plc [1991] 2 AC 93. That case is distinguishable from this one because it was dealing with a further and later rent review and that fact was an essential element in the reasoning that led to the decision therein. However in our judgment the statements of general principle in respect of res judicata and issue estoppel are relevant. In particular the following are relevant:

(a) the approved citation at 107H:

"All estoppels are not odious but must be applied so as to work justice and not injustice and I think the principle of issue estoppel must be applied in the circumstances of the subsequent case with this overriding consideration in mind"

and

(b) the passage at 110G to 111C:

Estoppel per rem judicatum, whether cause of action estoppel or issue estoppel, is essentially concerned with preventing abuse of process. In the present case I consider that abuse of process would be favoured rather than prevented by refusing the plaintiffs permission to reopen the disputed issue. Upon the whole matter I find myself in respectful agreement with the passage in the judgment of Sir Nicholas Browne-Wilkinson V.-C. where he said [1989] Ch. 63, 70-71:

"In my judgment a change in the law subsequent to the first decision is capable of bringing the case within the exception to issue estoppel. If, as I think, the yardstick of whether issue estoppel should be held to apply is the justice to the parties, injustice can flow as much from a subsequent change in the law as from the subsequent discovery of new facts. In both cases the injustice lies in a successful party to the first action being held to have rights which in fact he does not possess. I can therefore see no reason for holding that a subsequent change in the law can never be sufficient to bring the case within the exception. Whether or not such a change does or does not bring the case within the exception must depend on the exact circumstances of each case."

I am satisfied, in agreement with both courts below, that the instant case presents special circumstances such as to require the plaintiffs to be permitted to reopen the question of construction decided against them by Walton J., that being a decision which I regard as plainly wrong.

These passages and the approach contained in them are in line with the approach of the courts to other estoppels.

76. The modern cases demonstrate that the description of types of estoppel is useful for describing how an estoppel arises, or the ingredients of an estoppel, and thus when it would be unconscionable for a person to be able to rely on a particular state of affairs but that a rigid approach by reference to description or ingredients is inappropriate. The doctrine of estoppel is a flexible one. This is shown for example by the outline of the law given by Lord Donaldson in the Court of Appeal in Hiscox v Outhwaite [1992] 1 AC 562 at 574H to 575G where he says:

Estoppel

In Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd. [1982] 2 QB 84, 122, Lord Denning M.R. summarised the modern law on estoppel by convention as follows:

"The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption - either of fact or of law - whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such a remedy as the equity of the case demands."

In the same case Eveleigh L.J., at p.126, and Brandon L.J., at pp 130-131, approved the following passage from Spencer Bower and Turner, Estoppel by Representation, 3rd ed. (1977), at p. 157:

"This form of estoppel is founded, not on a representation of fact made by a representor and believed by a representee, but on an agreed statement of facts the truth of which has been assumed, by the convention of the parties, as the basis of a transaction into which they are about to enter. When the parties have acted in their transaction upon the agreed assumption that a given state of facts is to be accepted between them as true, then as regards that transaction each will be estoppel against the other from questioning the truth from the statement of facts so assumed."

In Norwegian American Cruises A/S v. Paul Mundy Ltd. [1988] 2 Lloyds Rep. 343, Bingham L.J., with the agreement of Taylor L.J., approved a passage in a judgment of Peter Gibson J. in Hamel-Smith v.Pycroft Jetsave Ltd. (unreported), 5 February 1987, from which he quoted at length: see pp. 351-352. In doing so he was approving criticisms of this passage in Spencer Bower and Turner, Estoppel by Representation, 3rd ed., p. 157. For present purposes all that need be said is that his judgment is authority for the proposition that estoppel by convention is not confined to an agreed assumption as to fact, but may be as to law (see p. 351), that the court will give effect to the agreed assumption only if it would be unconscionable not to do so and that, once a common assumption is revealed to be erroneous, the estoppel will not apply to future dealings.

This passage, together with the Arnold case covers the types or descriptions of estoppel raised in this case.

77. Additionally Foxboro referred us to and relied on Comm. for New Towns v Cooper [1995] Ch 259. They did so to found an argument that if our conclusion and their contention as to the extent of the agreement reached in correspondence in 1995 is wrong, and there is no estoppel by convention that agreement and/or the orders made by this Tribunal dated 30 August 1995 should be rectified to have the effect understood and contended for by Foxboro. Counsel for Foxboro referred us in particular to the passages at pages 260D, and 277C to 282F of the report of the Cooper case. Those passages deal with rectification on the basis of unilateral mistake. The overall conclusion in that case was however expressed in terms of unconscionabilty (see 280 C/D and 282F) and therefore there is a link between it and the "estoppel cases". We pause to comment that the approach and reasoning in the Cooper case is one that requires a high degree of conscious and therefore subjective unconscionable conduct.
78. On behalf of Mr Jones is was argued that:

(a) Foxboro should not be allowed to advance additional arguments based on estoppel by convention, or arguments based on unilateral mistake because they were not raised before the Employment Tribunal, and

(b) in any event this Tribunal was bound by the finding of the Employment Tribunal in paragraph 16 of the Extended Reasons in connection with the argument on estoppel advanced to them that Mr Jones did not trap Foxboro and that there was no representation emanating from the correspondence upon which Foxboro relied.

Additional Arguments on Estoppel and Unilateral Mistake - our approach in law

79. In support of the argument referred to in paragraph 78(a) Mr Jones (a) relied on the fact that Foxboro described the arguments classified on the appeal as (i) estoppel by convention, and (ii) rectification for unilateral mistake as additional grounds, and sought leave to amend to add them (and other grounds to the cross appeal), and (b) relied on Jones v Governing Body of Burdett Coutts School [1999] ICR 38.
80. Foxboro argued that a respondent should, or should generally (rather than exceptionally in line with the approach set out in the Jones case) be allowed to add new grounds on an appeal when new evidence was not required. In support of that submission we were referred to Thomas v Marconi Wireless [1965] 1 WLR 851 at 850 D/G, and 852 C/G, Secretary of State for Employment v Newcastle upon Tyne Council [1980] ICR 407 at 408 A/D, 409F, 411G, 412A, 412E to 413A and 414c to 415B and Hellyer Bros v McLeod [1987] ICR 526 at 565 B/F. The argument was therefore to the effect that on the issue of adding new grounds this Tribunal should take a different approach to that set out in the Jones case when it was a respondent who was seeking to advance the new grounds.
81. We accept that the cases relied on by Foxboro provide authority for the point that the addition of new grounds by respondents has been approached and treated differently in the past. But it seems to us that the Jones case was intended to have, and does have, general application to the addition of new grounds (i) by parties to appeals before this Tribunal, and thus (ii) by both appellants and respondents. We are of this view notwithstanding the reference in the opening sentence of the paragraph at [1999] ICR 43G of the judgment of Robert Walker LJ to the appellant because:

(a) the judgment goes on to refer to all the cases relied on by Foxboro but does not refer to any difference in approach that would have arisen if in the Jones case it had been the respondent who had been seeking to raise the new point of law,

(b) the conclusion at [1999] ICR 44 B/F is in general terms, and

(c) the logic and reasoning at [1999] ICR 46 F/H applies to both parties.

82. It follows that in our judgment we should apply the approach and principles set out in the Jones case particularly at [1999] ICR 44 B/F from which it follows (see also 46C) that we should give reasons for a decision to allow new points to be taken.
83. This does not mean that the fact that it is a respondent who is seeking to advance new points of law (or points so described on the respondent's behalf) should necessarily be ignored because this could be a factor in a conclusion that the case was one where exceptional circumstances existed that warrant this Tribunal allowing a new point of law to be taken.
84. In our judgment it is also important to remember that in the Jones case at [1999] ICR 44E the Court of Appeal cite with approval from Wilson v Liverpool Corporation [1971] 1 WLR 302, 307 which makes the point that the rule of practice is that the new point cannot be taken unless this Tribunal:

----- is in possession of all the material necessary to enable it to dispose of the matter finally, without injustice to the other party and without recourse to a further hearing below

and go on to make the point that in the Jones case the result of introducing the new point and allowing the appeal on the basis of it would be a remission to the Employment Tribunal.

85. It was common ground before us that if the introduction of the additional and new points and a determination of the appeal on the basis thereof would lead to a remission for further facts to be considered and found by the Employment Tribunal this was a very strong factor against us allowing them to be introduced.

The findings of fact in paragraph 16 of the Extended Reasons

86. As appears from paragraph 78(b) hereof Mr Jones asserts that we are bound by these findings.
87. The Employment Tribunal heard no oral evidence and were not invited to do so by either of the parties in respect of the arguments advanced on estoppel. The Employment Tribunal therefore made the findings in paragraph 16 of the Extended Reasons as to (i) Mr Jones' subjective intentions and thought process, and (ii) reliance on a representation by Foxboro without hearing any oral evidence. In our judgment:

(a) the Employment Tribunal should have heard oral evidence (or at least have invited the parties to consider whether they wished to call oral evidence) before making such findings, but

(b) this error of law is not one that could be relied on by Foxboro to seek to avoid these findings of fact and to seek a remission for further evidence to be given on the estoppel arguments raised before us and the Employment Tribunal, or the argument raised before us based on unilateral mistake, because they should have given (or sought to have given) oral evidence and cross examined (or sought to have cross examined) Mr Jones before the Employment Tribunal (and see by analogy Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 in particular paragraphs 14 to 17 and paragraph 20 of the judgment). We add that this argument was not advanced on behalf of Foxboro and indeed their case remained that all the arguments advanced could be dealt with on the documents.

88. We do not agree that arguments based on estoppel and/or unilateral mistake which require (i) a consideration of, and findings as to, Mr Jones' intentions, his motives or his understanding of what Foxboro thought was the consequence of the correspondence and the orders, or (ii) a consideration of, and findings as to, Foxboro's reliance on a representation they thought had been made by Mr Jones (and thus Mr Coles' state of mind) can be fairly and properly decided only by reference to the correspondence passing between the parties. In our judgment a fair and proper determination of such issues requires oral evidence and cross examination, or at least the parties being given an opportunity to give oral evidence. We therefore agree with the submission made on behalf of Mr Jones that before this case was to be determined by reference to such conscious and subjective matters Mr Jones (and we would add Mr Coles) should be given the opportunity of giving oral evidence.
89. However we do not agree that we are bound by the findings of fact in paragraph 16 of the Extended Reasons because in our judgment they have been reached on the basis of, and against the background of, an error in law made by the Employment Tribunal as to the construction and effect of the correspondence. Put another way in our judgment these findings are not "free standing" and cannot stand having regard to the error of law concerning the construction of the correspondence.
90. The result of this is that:

(a) there are no findings of fact on such conscious and subjective matters that are binding on us, and

(b) we are not in a position to make any such findings because we have not heard (and in our judgment correctly have not been invited to hear) oral evidence on the appeal and cross appeal.

91. We pause to add that it follows that we do not accept:

(a) the arguments based on the correspondence and advanced on behalf of Foxboro to found their argument based on unilateral mistake and thus as to Mr Jones' conscious and subjective intentions, motives and view as to Foxboro's understanding, or

(b) the arguments advanced on behalf of Mr Jones and based on the arguments put forward by Mr Coles at the Employment Tribunal that Foxboro deliberately and without reference to anything Mr Jones had done chose to withdraw their appeal in the belief that mutual withdrawal of the appeals enabled them to assert that the 1991 Decision was no longer enforceable,

We accept that points could properly have been put in cross examination in respect of such arguments and following oral evidence findings might have been made which would have supported them. In particular in this respect we accept that if prior to the orders made by this Tribunal dated 30 August 1995 Mr Jones was not of the view that following the Coloroll decision, the withdrawal of the appeals and those orders his pension would be calculated in accordance with that decision and the letter dated 1 February 1995 the correspondence from him (both before and after the 30 August 1995), and the letter from his then solicitors dated 21 March 1995, would found cross examination both as to what his views were, and as to what he thought Foxboro's position was..

Consideration of the estoppel arguments put before the Employment Tribunal and the additional arguments

92. In our judgment we should only dispose of this appeal (and cross appeal) on the additional grounds argued before us by Foxboro in respect of estoppel, and unilateral mistake, if, in our judgment, we are in possession of all the material necessary to enable us to do so without injustice to Mr Jones (see the citation set out in paragraph 84 hereof from the Wilson case that was approved in judgment in the Jones case).
93. In our judgment injustice would be caused to Mr Jones if this appeal (and cross appeal) was decided by reference to findings and grounds that could not properly be based solely on the correspondence and other documents and thus on the evidence that was before the Employment Tribunal and is also before us. This means that we should not dispose of this appeal (and cross appeal) by reaching a final decision ourselves or remitting to the Employment Tribunal on the basis of the arguments advanced by Foxboro on (a) an estoppel which can conveniently be classified or described as one based on a representation made by Mr Jones and relied on by Foxboro or unilateral mistake, or (b) rectification based on unilateral mistake.
94. However, in our judgment for the same reasons that this Tribunal can differ from and itself make findings on the agreement reached in the correspondence (see paragraphs 45, 46 and 70 above) we can also properly make findings based on the correspondence in this case (which constituted the only communication between the parties) and dispose of this appeal (and cross appeal) having regard thereto on the basis of an estoppel which can conveniently be classified, or described, as an estoppel by convention.
95. In our judgment this is an exceptional case where we should permit Foxboro to advance the additional arguments on estoppel which they sought to advance for the following reasons:

(a) the point made in paragraph 94,

(b) the true construction of the correspondence and thus the issue as to what the parties had agreed and commonly understood based on the correspondence was argued before the Employment Tribunal,

(c) an estoppel point was argued before the Employment Tribunal and thus although classified and treated before the Employment Tribunal as an estoppel by representation the point whether it would be unconscionable for Mr Jones to rely on the 1991 Decision was raised before the Employment Tribunal,

(d) if the Employment Tribunal had reached the view we have as to the construction of the correspondence they would have had to have considered s. 77 Sex Discrimination Act and this would have highlighted the issue of estoppel and in particular estoppel by convention,

(e) if consciously and subjectively Mr Jones did not view or understand the correspondence in 1995 as a settlement agreement and thus in the way in which we have construed it because either (i) he did not consider its effect on the 1991 Decision prior to the making of the orders dated 30 August 1995, or (ii) he thought that (as he later says in the correspondence) Foxboro were making a mistake and that after the orders were made by consent he could rely on the 1991 Decision in the calculation of his pension rather than the Coloroll case, these states of mind would not assist Mr Jones because neither would alter the common understanding and thus the mutual representations made by the correspondence assessed objectively, and both would found an argument of estoppel under a different classification (e.g. by representation, or possibly based on unilateral mistake). In other words the possible alternative findings as to the conscious and subjective views and intentions of Mr Jones if they were not that the Coloroll case would govern the calculation of his pension would not assist Mr Jones,

(f) the background to the correspondence and orders made in 1995, namely that the parties were awaiting the outcome of the Coloroll case,

(g) the clear effect of the Coloroll case on the appeals from the 1991 Decision, and

(h) the lack of relevant rules, or practice directions, dealing with the disposal of appeals by consent and in particular what should be done when the parties seek an order that an appeal be allowed (see paragraph 19 above).

96. As to the points made in paragraph 95(e) we comment that the arguments referred to in paragraph 91(b) relating to Foxboro's conscious and subjective intentions and understanding related to, and were limited to, an argument that an estoppel did not arise on the basis that the finding that the agreement reached in 1995 was simply an agreement to withdraw the two appeals was correct and Foxboro could not avoid their mistaken understanding of the effect of such an agreement and the orders made by this Tribunal dated 30 August 1995 in consequence thereof. In our judgment the argument was correctly so limited because Mr Coles' correspondence when the problem arose, and his arguments before the Employment Tribunal, all indicate that he thought that the pension was to be calculated pursuant to the Coloroll decision,

Conclusion on estoppel

97. In our judgment having regard to the points set out below it would be unconscionable for Mr Jones to be able to rely on the 1991 Decision as the basis of his pension entitlement and he is estopped (a) from doing so by relying on (i) s. 77 Sex Discrimination Act, or (ii) the orders made by this Tribunal dated 30 August 1995, and (b) from doing for any other reason. Further in our judgment he is estopped from asserting that his pension entitlement should be calculated other than in accordance with the Coloroll decision. The points referred to are:

(a) the agreement and thus the common understanding reached in the correspondence,

(b) the points made in sub-paragraphs 95 (e) to (h), and

(c) the purpose of s. 140 of the Employment Protection (Consolidation) Act 1978 and thus by analogy of s. 77 Sex Discrimination Act as described in Times Newspapers v Fitt [1981] ICR 637 at 643 (see paragraph 66 above).

Amendment of Foxboro's Answer and Cross Appeal

98. We allow the amendment. This introduces into the appeal all the additional arguments on estoppel and rectification based on an allegation of unilateral mistake. As appears above in our judgment:

(a) the argument classified as estoppel by convention is the one on which we can dispose of this appeal (and cross appeal), and

(b) we should not dispose of the appeal (and cross appeal) on any grounds that rely on unconscionable conduct founded upon the conscious and subjective views of the individuals involved,

but in our judgment the pragmatic course is to allow all the amendments relating to estoppel and rectification based on unilateral mistake rather than attempt to extract and disallow parts of them because they are exclusively related to grounds of appeal that we have rejected. A further factor in this decision is that estoppel is based on unconscionability and the introduction of all the arguments (which in our judgment it was sensibly agreed should be advanced by Foxboro on the basis mentioned in paragraph 29 hereof) (i) enables this Tribunal to consider estoppel in all the circumstances (albeit that some of the arguments have failed on the basis that they are new and would lead to the need to remit), and (ii) gives rise to the consideration of the points made in paragraph 95(e) above and thus to the conclusion that this Tribunal is in possession of all the material necessary to enable it to dispose of the matter finally, without injustice to either party and without recourse to a further hearing below (see the Wilson case and paragraph 84 above).

99. The amendment also sought to introduce arguments on construction, namely (i) that the conclusion of the Employment Tribunal that the agreement reached in 1995 was simply for mutual withdrawal was wrong, and (ii) as mentioned in paragraph 69 above as to the construction of the orders made by this Tribunal dated 30 August 1995 and in particular that made on the appeal brought by Foxboro. In our judgment these amendment should also be allowed for the following reasons:

(a) the first one revisits an argument put before the Employment Tribunal and it is therefore not a new argument. Also it involves only a consideration of the documents that were before the Employment Tribunal,

(b) the second argument also does not introduce the need for any further oral evidence and turns entirely on the documents. Further it is a natural extension of the argument before the Employment Tribunal as to what was agreed between the parties in 1995, and

(c) the points made in paragraph 95 (d), (f), (g) and (h) above.

100. This conclusion on estoppel gives rise to the same order as set out in paragraph 71 above.

Review

101. Foxboro did not seek a review. We raised it as a possibility. In view of our conclusions set out above it is not necessary for us to deal with this point but it was argued and we shall do so because in our judgment it provides an additional and alternative means by which we can make an order that disposes of this appeal (and cross appeal).
102. The relevant part of Rule 33 is Rule (1)(c), and it is in wide terms in that it provides that this Tribunal can review its orders of its own motion (without time limit) if the interests of justice require such a review. However the discretion conferred is a judicial one which must be exercised cautiously, not as a substitute for an appeal and with regard to the purpose of the rule, the interests of both parties and the public interest in finality of litigation (see for example Lindsay v Ironsides Ray & Vials [1994] IRLR 384 at 393A/H).
103. However in our judgment the rule confers a discretion which this Tribunal should consider exercising of its own motion to fulfil or promote the underlying purposes of the rule and it would be incorrect to attempt to lay down a rigid approach or guidelines as to the exercise of this discretion.
104. With the qualifications mentioned in paragraph 102 one of the purposes underlying the rule is the correction of a mistake particularly when the Tribunal has contributed thereto if the interests of justice require a review to effect that correction. This is apparent, for example, from the decision in Harber v North London Polytechnic [1990] IRLR 198 where the Court of Appeal held that a chairman of an Employment Tribunal had not properly exercised her discretion in refusing a review following a withdrawal by the appellant's union representative of his unfair dismissal complaint. The representative's decision to withdraw was based on a mistake and was consequent in part upon some correspondence not being sent to the Tribunal by the employer's solicitors, in part upon the Tribunal chairman asking the a wrong question and in part on other matters in respect of the manner in which the hearing was conducted (see the Headnote and paragraphs 13, 22 and 26 of the judgment of Balcombe LJ). This Tribunal dismissed an appeal and concluded that the withdrawal was a deliberate act and any redress for the employee must be against his union. The Court of Appeal allowed the appeal and at paragraph 26 Balcombe LJ refers to the discretion conferred by the rule being exercised on well established principles one of which must be: was there any mistake made at the original hearing. It was found that there was and that in the circumstances of that case it would not be just to hold the employee to the mistake of his union representative and there should be a review notwithstanding that normally a litigant will be held to the mistakes of his representative.
105. Counsel for Mr Jones drew our attention to Eden v Humphries & Glasgow [1981] ICR 183 where this Tribunal refused a review pursuant to Rule 20 of the then Employment Appeal Tribunal Rules which had a similar power to review. In that case during the morning of the day on which the appeal was due to be heard an agreement was reached pursuant to which the appeal was withdrawn. The employee sought to set aside the agreement on the basis of pressure that he alleged had built up during the morning of the day that the appeal was listed for hearing which had eventually persuaded him to enter into the agreement and withdraw the case. At 185H to 186C of the judgment it is stated:

Now as we understand the position in the High Court, from looking at The Supreme Court Practice (1979), vol. 2, paras, 2015 and 2016 under the heading "Compromise," if an action is compromised then the compromise can only be set aside by a separate action and on certain limited grounds. The question is whether the appeal tribunal has jurisdiction to set aside an agreement which has been made, even if application is made on grounds which would justify the matter being set aside in the High Court. We have to remember that we are a body set up by statute with only the powers which the statute gives us. It does not seem to us that those powers do include jurisdiction to set aside an agreement which has been arrived at between the parties to compromise an appeal to this tribunal. Nor can the provisions of the notes which the employee relies on, to the effect that we can regulate our own procedure, possibly gives us the jurisdiction which he suggests that those notes do give to us.

Accordingly, it seems to us clear that if we cannot set aside the agreement which has been made by the parties, then the interests of justice cannot require that we should review the order which we made giving leave to withdraw the appeal. Whether he thinks that it is right to seek to raise the matter in any other court is, of course, entirely a matter for him, but we rule that we do not have jurisdiction to set the agreement aside, and accordingly, we refuse his application that we should revoke our order giving leave for the appeal to be withdrawn.

We accept that this Tribunal does not have jurisdiction to hear an action and thus an action to set aside an agreement on the grounds of fraud, misrepresentation or undue influence. Further we accept that the Eden case supports the view that if a review was dependent on such an agreement being so set aside, as it was in that case, this Tribunal should not hear what in effect would be such an action and oral evidence. However we do not consider that this approach to, or limitation on, the exercise of the power to review should be described as a jurisdictional limit to that power and it was not so described in the Eden case. In our judgment this approach, or limitation, is one that is based on the judicial exercise of the discretion conferred by the power to review having regard to the purposes that underlie the power. As the Harber case shows one of those purposes is to correct mistakes in our judgment this purpose is not limited to unilateral mistakes or mistaken actions but also covers mistakes by one party which are agreed to, or acted on, by the other party and common mistakes. Further in our judgment in an appropriate case this Tribunal could in the exercise of its discretion hear oral evidence in considering a review. Having said that we add that in our judgment it would only be in exceptional circumstances that this Tribunal should hear oral evidence in the exercise of its power to review.

106. If follows that in our judgment the Eden case is not authority:

(a) for the proposition that on a review, and therefore in this case, this Tribunal does not have jurisdiction to review an order based on an agreement and, for example, in our judgment it could do so if the parties agreed that they had made a mistake and no longer wished to rely on the agreement whether or not it amounted to a compromise agreement, or

(b) which otherwise precludes a review in this case because here the review would not necessitate the setting aside of a compromise agreement because (i) if our conclusions on the nature and effect of the agreement reached in the 1995 correspondence is correct the review would bring into effect the underlying compromise, and (ii) if the Employment Tribunal were right and that agreement was simply a mutual withdrawal that has no real element of compromise as it simply involved both sides giving up their respective appeals. Further the review would be based on a mistake which resulted in Foxboro's (or both parties) intention that Mr Jones' pension would be calculated and paid pursuant to the Coloroll decision not being fulfilled, whereas in the Eden case the agreement was a compromise agreement, the nature and extent of the agreement was not in dispute and no mistake was made in obtaining an order for withdrawal of the appeal in the sense that the withdrawal had the intended effect that the compromise agreement was effective and enforceable.

107. If we are correct in our conclusions as to the agreement reached in correspondence in 1995 and, further or alternatively, estoppel they found a conclusion that the interests of justice require that Mr Jones should not be able to rely on the orders made by this Tribunal dated 30 August 1995 to reach the result that the 1991 Decision can be enforced by him. If we are correct in those conclusions we accept that it can be said that a review is not required to effect this result. But as an alternative and additional means of promoting the interests of justice, and to avoid any technicality or point that might be raised that our conclusions on the agreement reached in correspondence, and estoppel, do not preclude reliance by Mr Jones upon the orders of this Tribunal dated 30 August 1995 and the 1991 Decision, we shall review the orders dated 30 August 1995 in the manner set out in paragraph 111 below.
108. The further question arises whether by reference only to the correspondence we can and should exercise our power to review on the basis that our conclusions:

(a) on the nature, extent and effect of the agreement reached in the correspondence,

(b) on our alternative approach based on the incorporation of the agreement into the orders made by this Tribunal dated 30 August 1995 (see paragraphs 66 to 69 hereof), and

(c) on estoppel,

and thus our conclusions at paragraphs 70 and 71 and 97 hereof, are wrong and the agreement was simply one of mutual withdrawal as found by the Employment Tribunal. As we have said such an agreement simply involves both sides giving up their respective appeals and therefore the parties performing two unilateral acts without any further agreement regulating the relationship between them for the future. It does not, for example, include an agreement that they will be bound by the 1991 Decision and no such agreement was alleged by Mr Jones.

109. In our judgment the Harber case supports, and is authority, for the view that this Tribunal can review an order giving leave to withdraw and dismissing an appeal consequent upon a withdrawal in circumstances that do not constitute, or equate to, unconscionable conduct that would establish an estoppel but where there has been a mistake by one, or both, parties which is of a type, and which has been made in circumstances, that warrant an exercise of the power.
110. Having regard to the strong public interest in certainty and finality in litigation we accept that this Tribunal should not exercise its power of review in respect of an order made by consent, or pursuant to a form of consent lodged by the parties, save in exceptional circumstances, and that particular caution should be taken when the party seeking to avoid the effects of the order made by, or pursuant to a, consent cannot establish an estoppel. However in our judgment this is such an exceptional case even if (and on the basis that) the agreement reached in 1995 was as found by the Employment Tribunal simply one of mutual withdrawal because:

(1) The background known to both parties was that the appeals had with the consent of this Tribunal been adjourned to await the outcome of the Coloroll case and as we have pointed out both parties were aware of the relevance and effect of that decision.

(2) The decision in the Coloroll case had the consequence that on both appeals Mr Jones had no reasonably arguable case and this must have been appreciated by Mr Jones and his solicitors at that time (see paragraph 8(2) above).

(3) In these circumstances it is unrealistic to contemplate that Foxboro ever intended that following the Coloroll decision they would pay Mr Jones a pension calculated other than in accordance with that decision. This assertion does not equate to a finding that Mr Jones was of the view that Foxboro were making a mistake, or that he had not considered the effect of the correspondence and withdrawal of the appeals on the 1991 Decision. It is based on (a) the letter from Mr Coles to Mr Jones dated 1 February 1995 which sets out clearly what Foxboro propose to do and is confirmed and followed up by (i) the letter from MHA Pensions Ltd dated 13 February 1995 (see paragraph 8(2) above), and (ii) Foxboro's reaction in their letter dated 25 October 1995 (see paragraph 14(1) above), and (b) the stance that any company in Foxboro's position would take.

(4) On the basis that the agreement was simply a mutual withdrawal the mistake, which Mr Jones maintains Foxboro cannot avoid and he is not estopped from taking advantage of, is a failure to appreciate that the effect of a mutual withdrawal pursuant to such agreement and the consent form signed would result in the dismissal of both appeals and the 1991 Decision remaining in force.

(5) Whether or not the arguments mentioned in paragraph 91(b) are correct and thus whether or not Foxboro deliberately chose the "withdrawal route" on the basis upon which we are now considering a review this was a mistake because on that basis this route did not give effect to their underlying intention that Mr Jones' pension would be calculated and paid in accordance with the decision in the Coloroll case. Indeed it is asserted by Mr Jones that Foxboro made a mistake (see for example his letter dated 17 November 1996 (paragraph 14(3) above) and his argument on this appeal) and this confirms the point made in sub-paragraph (3) above.

(6) Although Mr Coles is we understand legally qualified he is not a litigation lawyer in general practice and although the mistake is described by Mr Jones in the letter dated 17 November 1996 as an elementary one in our judgment it is an understandable one.

(7) The mistake was in our judgment contributed to by this Tribunal in two ways namely:

(a) because there was then in existence no rules or practice direction dealing with the disposal of appeals by consent when the intention of the parties (or one of the parties) was that the decision of the Employment Tribunal would no longer be binding and determine the rights of the parties, and

(b) given the absence of such rules or practice direction, and the fact that the consents for withdrawal and the correspondence that were sent to this Tribunal do not refer to dismissal, in its correspondence with the parties and in drawing the orders and including therein a reference to the letter dated 1 February 1995 this Tribunal did not seek to clarify with the parties what they had agreed and what their intentions as to the calculation of Mr Jones' pension were having regard to the 1991 Decision and the decision in the Coloroll case.

(8) If the parties had been asked their views having regard to the Coloroll decision, or the appeals had been brought before this Tribunal and considered in the light of the 1995 correspondence and form of consent, it is clear to us that this Tribunal would not have given leave to withdraw on the basis that both appeals were dismissed and the 1991 Decision was to remain in effect and form the basis for the calculation of Mr Jones' pension.

111. On the basis set out above, and for the reasons given above which are based on the correspondence and documents in our judgment the interests of justice require a review of both the orders made by this Tribunal dated 30 August 1995. In our judgment we should review the orders by considering what this Tribunal would have done if the two appeals had been listed before it for directions on 30 August 1995. On that basis in our judgment:

(a) this Tribunal by analogy with its approach on a preliminary hearing would have dismissed Mr Jones' appeal on the basis that having regard to the decision in the Coloroll case no reasonably arguable point of law remained in it, and

(b) again by reference to the Coloroll case this Tribunal would have allowed Foxboro's appeal, set aside the 1991 Decision and made an order in the same terms as that set out in paragraph 71(c) hereof.

We so review the orders made by this Tribunal dated 30 August 1995 by setting them aside and in their place making orders as set out in sub-paragraphs (a) and (b) above.

Conclusion

112. For the reasons given above we:

(1) make the order set out in paragraph 71, and

(2) in addition we review the orders made by this Tribunal dated 30 August 1995 in the manner set out in paragraph 111.