THE HONOURABLE LADY SMITH
Introduction
1.
This is an appeal at the instance of a group of six Claimants who have
presented equal pay claims from the judgment of an Employment Tribunal sitting
at Glasgow, Employment Judge Susan Walker, registered on 12 May 2010, holding
that:
“ …the claimants have entered into compromise contracts that
fulfil the conditions set out in section 77(4A) of the Sex Discrimination
Act 1975 and that the tribunal has no jurisdiction to consider the claims
insofar as they relate to a period up to and including 20 December 2005.”
2.
The Claimants all signed compromise agreements entitling them to be paid
various compensation payments by the Respondent, in November 2005. They are a
representative sample of a much larger group of Claimants who signed compromise
agreements at that time, in similar circumstances, and who have also presented
equal pay claims to the Employment Tribunal. About 10,500 of the Respondent’s
employees had access to these agreements. I will continue referring to parties
as Claimants and Respondent.
3.
The Claimants were represented by Mr JJ Mitchell QC and Mr D O’Carroll,
advocate, before the Tribunal and by Mr JJ Mitchell QC before me. The Respondent
was represented by Mr J Bowers QC before the Tribunal and by him and Mr S
Miller, solicitor, before me.
Background
4.
By letter dated 23 June 2004, the Trade Union Side of the Scottish Joint
Council wrote to the Chief Executives of Scottish local authorities including
the Respondent following various meetings. The letter asserted that those
authorities were failing in “their legislative duty to ensure equal pay in
Scottish local government” and made it clear that action would be taken against
them if they did not do so. In particular, it stated:
“To safeguard the interests of our members we shall take any
necessary steps, which may include the pursuit of equal pay claims.”
adding that:
“Scottish Councils should be aware that external agencies have
expressed an interest in equal pay cases.”
5.
By October 2005, the Respondent had met with representatives of the main
representative trade unions of which their employees were members, to discuss
equal pay matters and had reached an agreement with those unions about
proposals to settle what it referred to as its “apparent equal pay liability”.
The Respondent had concluded that it was at risk of facing multiple equal pay
claims. Accordingly, it made funds of £40m available with a view to settling
them. They instructed their solicitor, Mr S Miller, to assist.
6.
On 10 October 2005, Mr Miller wrote to a number of large firms of
solicitors whose practices included employment law specialisation, in terms
which included:
“We suspect that you will be aware that Glasgow City Council has reached an agreement with its main representative trades unions about
proposals to settle its apparent equal pay liability.
If the individual affected employees agree to accept the offers
which are about to be made by Glasgow City Council they may be asked to sign
compromise contracts in terms of section 77 of the Sex Discrimination Act 1975
and, accordingly, will require to receive advice from a relevant independent
adviser. As the number of employees affected is likely to exceed 10000 Glasgow City Council is presently seeking to establish a panel of solicitors who would be
prepared to act as relevant independent advisers.
Because of the scale of the advising and executing role envisaged
we are restricting the circulation of this note to sizeable employment law
practices only. The likely period during which advice will be sought will be
24th October to 25th October 2005, probably during group
meetings hosted by Glasgow City Council and held from 4pm onwards during the
working week.
If your practice is interested in advising some or all of the
employees concerned please register that interest with us ...
We will then provide further information to all interested
advisers.”
7.
Fifteen firms registered an interest and, ultimately, a panel of six
firms was formed. It was agreed that the solicitors would attend sessions at
which groups of employees would be present. It was also agreed that the Respondent
would pay the solicitors’ fees (£1,000 plus VAT per adviser – to a maximum of 5
– for attending and advising clients at 3 sessions) and that they would be
payable irrespective of whether or not the employee agreed to settle.
8.
Prior to the stage at which the panel solicitors were involved, the
relevant employees were invited by the Respondent to a briefing session.
Thereafter they each received a written offer of compensation. An example of
such a letter is that which was written to the fourth Claimant, dated 31
October 2005 which was in the following terms:
“Thank you for attending today’s briefing session.
You are being offered a compensation payment of £2372.
The amount offered to you is net of tax and national insurance.
The compensation payment has been calculated using the appropriate
table as shown in the enclosed information pack.
At the registration for today’s briefing you will have been
given a coloured information slip allocating you a date and time to attend a
meeting with an independent legal adviser who will discuss the legal aspects of
the offer you have received ( if you did not receive an information slip, you
should contact your Line Manager immediately).
You should attend this meeting to enable you to be given
independent, impartial legal guidance. Furthermore, at this session, you will
be able to sign-up to accept your compensation payment from Glasgow City
Council. If you sign up at this stage, you will receive your payment before
Christmas 2005.”
9.
The information slip repeated the terms of the last paragraph of the letter.
The information pack included the following terms:
“The Council, in partnership with the Trade Unions, has begun
the process of tackling financial inequality in the workplace through the offer
of compensation payments.”
“All staff who are being offered a compensation payment are
being provided with information about what the Council and Trade Unions have
negotiated.”
“…we will provide every member of staff affected with impartial,
independent legal advice.”
“The Council has commissioned a number of legal firms to provide
employees with FREE and completely IMPARTIAL legal advice. You should receive
notification of this”
10.
On 2 November 2005 the panel solicitors met with Mr Drummond, solicitor
to the Respondent, to discuss matters. Mr Drummond explained that they had
identified those employees in respect of whom they were at high risk of facing
equal pay claims, that the Respondent had £40m to spend on settling potential
claims and that no detailed comparative exercise had been carried out – the offers
were based on what the Respondent could afford to pay. Discussion about the
logistics of the meetings with the employees that were to take place followed.
11.
The solicitors then met between themselves and agreed that they would
proceed at the group session by, first, one of their number giving a PowerPoint
presentation to all employees attending and thereafter each employee would be
able to meet with a solicitor on an individual basis. They agreed the terms of
a PowerPoint presentation between themselves.
12.
A draft compromise agreement was provided to the solicitors. Certain
matters were taken up with the Respondent. Mr Morris of Wright Johnston
MacKenzie raised the issue of when the compensation payments would be made,
proposed wording to ensure that the Respondent would meet any liability to
income tax or national insurance, and proposed the deletion of references to
the employees undertaking certain obligations. His proposals were accepted.
Ms Keys of McGrigors was concerned to see to it that the compromise agreement
did not cover equal pay claims arising from the exclusion of part time
employees from the employer’s pension scheme. The Respondent dealt with that
by issuing a “back letter”. Ms Carr, of Brechin Tindal Oats, sought
information relating to the employees’ broad salary ranges and details of
potential comparators, on a general basis, to which the Respondent responded,
providing average full time salaries for the different categories of posts and
details of possible comparators.
13.
The solicitors considered the information obtained by Ms Carr and
concluded that it was not sufficiently detailed to enable them to advise
individual employees on their own particular position – their advice to the
individual employees would be limited to the terms and effect of the compromise
agreement. The Employment Judge found, at paragraph (xix):
“While the solicitors were not entirely comfortable with this
they decided that this was sufficient to meet the statutory requirements of
section 77 of the Sex Discrimination Act. They discussed the form of a letter
that the employees would sign that would confirm the restricted extent of the
advice that had been received.”
14.
The solicitors also sought advice from the Law Society of Scotland and
received confirmation that the procedure that was to be adopted would conform
with the society’s “Client Communication Rules”.
15.
Group sessions were arranged by the Respondent to take place at various
locations on various dates in November and December 2005. At these sessions, in
accordance with the procedure that the solicitors had determined on, one of
their number, in the presence of all of them, gave a PowerPoint presentation,
in the terms that had been agreed between them, to the group as a whole. Then,
individual meetings between solicitors and employees followed. Many compromise
agreements were signed by employees, including the present Claimants, at the
individual solicitor/employee sessions.
16.
The PowerPoint slides were produced and referred to at the Employment
Tribunal and evidence was given about what was said in the course of the
presentations. At paragraph (xxiv), the Employment Judge found that they
covered the basis of an equal pay claim, what was meant by a compromise
agreement, what were the effects of a compromise agreement, that the solicitors
could not advise employees as to whether what was on offer was a good deal for
each of them personally, what was meant by the terms of these particular
compromise agreements, what would be their effect if signed and what would
happen if the employees signed and then breached them. The presentations
concluded with the words:
“If in any doubt, DO NOT sign today. Take agreement away and
seek advice on your own individual circumstances.”
17.
There was an opportunity to ask questions, which some employees did.
18.
Each of these six Claimants attended a group session, heard a
presentation and went on to have an individual meeting with a solicitor at
which they signed letters of engagement. The Employment Judge has made
specific findings about their meetings. The presentation was referred to by
each of the solicitors, they checked whether the Claimants had seen and
listened to the presentation, and they provided them with copies of the PowerPoint
slides. They explained that they could not tell the Claimants whether they had
a valid equal pay claim or, if they did, what was its value. They explained
that the Claimants did not have to sign that day and if they were unsure they
should not sign but go away and think about it.
19.
What the Claimants were not told by the solicitors was whether or not
the deal on offer was a good one for them personally. That was what they had
wanted to be told.
Relevant legislation
20.
Section 77 of the Sex Discrimination Act 1975 (“SDA”) was in
force at the relevant time. It provides:
“77 Validity and revision of contracts
…
(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 terms would operate apart from this subsection.
(4) Subsection (3) does not apply –
…
(aa) to a contract settling a
complaint to which section 63(1) of this Act or section 2 of the Equal Pay Act
1970 applies if the conditions regulating compromise contracts under this Act
are satisfied in relation to the contract;
(4A)The conditions regulating compromise contracts under this
Act are that –
(a) the contract must be in
writing;
(b) the contract must
relate to the particular complaint;
(c) the complainant must
have received advice from a relevant independent adviser as to the terms and
effect of the proposed contract and in particular its effect on his ability to
pursue his complaint before an employment tribunal;
(d) there must be in force,
when the adviser gives the advice, a contract of insurance, or an indemnity
provided for members of a professional body, covering the risk of a claim by
the complainant in respect of loss arising in consequence of the advice;
(e) the contract must
identify the adviser;
(f) the contract must state
that the conditions regulating compromise contracts under this Act are
satisfied.
(4B) A person is a relevant independent adviser for the purposes
of subsection (4A)(c)–
(a) if he is a qualified
lawyer, …
…
(4BA) But a person is not a relevant independent adviser for the
purposes of subsection (4A)(c) in relation to the complainant –
(a) if he is, is employed
by or is acting in the matter for the other party or a person who is connected
with the other party, …” .
The issues
21.
Three issues were raised before the Employment Tribunal and in the
appeal before me:
i. whether or not each compromise agreement related to a “particular
complaint” (SDA section 77(4A)(b);
ii. whether or not the Claimants received “advice” from the solicitors
who they met in the individual sessions (SDA section 77(4A)(c ) ); and
iii. whether or not those solicitors were “acting in the matter” for the Respondent
(SDA section 77(4B)(a)).
22.
I will deal with each of these in turn.
“Particular Complaint”
23.
The Claimants’ primary position was that there had to be a pre-existing
claim before the Employment Tribunal; the word “complaint” was to be taken to
refer to an existing Tribunal claim. Whilst that might seem like a narrow
construction, that was, in Mr Mitchell’s submission appropriate because
the purpose of the legislation was to protect the employee. There was an
evident fear that they may otherwise be put in a position of being pressured
into settling matters which were not yet the subject of dispute. He did not
suggest that there was any authority directly in point but referred in support
of his submission to Mummery LJ in University of East London v Hinton
[2005] ICR 1260, at paragraph 17 where he observed that the legislative policy
was to protect employees who were being asked to sign away their rights,
particularly with regard to future claims and opined that the statutory
provisions should be construed so far as possible to promote the purpose of
protecting employees who are agreeing to relinquish rights to bring
proceedings. That said, it is of note that he also observed, appropriately in
my view, that the policy of the law is that disputes should be settled and if
agreements in which employees give up their rights to bring tribunal claims
were always void, employers would be deterred from settling disputes.
24.
Mr Mitchell also, very properly, referred to the case of Clarke v
Redcar and Cleveland BC [2006] IRLR 897, a decision of this Tribunal where HHJ McMullen QC said, under reference to SDA section 77, at paragraph 13:
“The legislation relevant to these cases allows parties to reach
finality by way of contracts to settle either outstanding tribunal claims or
matters which could be taken to a tribunal.”
25.
The Claimants had a fall back position. If it was not a pre-requisite
of the validity of a compromise agreement that the relevant employee had
presented a claim to an employment tribunal, it at least had to have been
articulated before the compromise agreement was entered into. That
articulation could, in Mr Mitchell’s submission, be by any means – it could be
oral or in writing – and it need not be formal. It did not, for instance, need
to amount to what would have been required for grievance procedure purposes.
The complaint did, however, have to have been, as he put it “brought up above
the parapet”. The context in this case was, he submitted, that the Respondent
was aware, privately, that it was vulnerable to claims but nothing more.
26.
Mr Bowers submitted that the construction of the legislation should
facilitate the practical operation of compromise agreements bearing in mind the
public policy that settlement of disputes was to be encouraged. There was no
basis for interpreting the relevant provisions as requiring that there be a
prior tribunal claim or indeed intimation of a complaint. That said, the equal
pay claims covered by the compromise agreements had been intimated by the
unions in the letter of 23 June 2004 and, on the evidence, by Claimants in
general terms. The matter had been referred to as being “the talk of the
town”. There was no material difference between section 203 of the Employment
Protection Act 1996 and SDA 2.77. They should be afforded a similar
interpretation; this tribunal was correct in the case of Lunt v
Merseyside TEC [1999] IRLR 458 to determine that the words “particular
complaint” in section 203 could not be limited to complaints that had
already been presented to a tribunal and that SDA section 77 could not be
construed any differently. He submitted that the complaint in question need
only have been formulated in the most general of terms and needed no
formality. He also relied on Hilton v McNaughton UKEATS/0059/04
, BAILII: [2005] UKEAT 0059_04_2009, for the submission that there was no need for a pre- existing tribunal
claim. As to concerns regarding the situation where a compromise agreement
purports to show that a claimant has relinquished all rights to future claims,
that was not a matter which arose on the facts.
27.
The Employment Judge found that it was not necessary for there to be a
pre-existing tribunal claim or for a prior grievance to have been raised
(p.36-7). She states:
“What is required by the condition that the agreements refer to
the ‘particular complaint’ is that the complaint to be compromised is
sufficiently identified either by statutory provision or generically and that
the employee is not asked to sign a blanket waiver of all possible claims he or
she may have. It is a matter of specification not of timing.”
28.
I agree. I am not persuaded that there is anything ambiguous or obscure
about the meaning of the words of the statute nor do I consider that they lead
to an absurdity; indeed, it could be said that it would absurd to insist that
the time, trouble and expense (both to the claimant and to the Tribunal
administration) that are liable to be involved in presenting a claim to an
Employment Tribunal have to be incurred before a valid compromise agreement can
be entered into. Giving the words of the statute their ordinary meaning, the
term “a complaint” is wide enough to include circumstances where there is
nothing more than an expression of dissatisfaction about something. If
Parliament had intended that an employee’s complaint had to have reached the
stage of being articulated in a claim that had been presented to an Employment
Tribunal, it could have provided for that but did not do so. That said, if
that had been Parliament’s intention, it would have been most
surprising, given that it is accepted public policy that the resolution of
disputes at an early stage – preferably pre-litigation – is to be encouraged.
29.
It follows from what I say above that I reject Mr Mitchell’s submission
that the wording of the provision involves potential ambiguity. That being so,
I do not consider that it would be open to me to have recourse to Hansard.
30.
It seems to me clear that the purpose of the “particular complaint”
requirement is to see to it that there is adequate specification in the
compromise agreement itself and is nothing to do with specification or
communication of any complaint at any earlier stage; the provision is not
temporal in nature. In the case of Lunt, Morison J agreed with
the Employment Tribunal’s findings that:
“‘Particular complaint’ in s.203(3) cannot be limited
to complaints that have been presented to a tribunal. …”
and
“Section 77(4A) (b) of the SDA 1975 cannot be construed any
differently, otherwise the provisions as to compromise agreements in the two
Acts would be in conflict.”
31.
I would also agree with those observations.
32.
I turn to the question of whether, if it is not necessary to have
presented a claim to the employment tribunal, it is nonetheless necessary for
the employee to have articulated the particular complaint at some earlier
stage. For the same reasons, I am not persuaded that it is. As the Employment
Judge observed (at p.37):
“It cannot be the case that an employer has to wait until a
complaint is made before a compromise can be offered if it is apparent to him
that there may be a potential claim.”
33.
I do not see that it matters if the “particular complaint” is one that
has been identified by the employer as opposed to one that has been identified
by the employee. What matters is that both parties know to which particular
complaint the compromise agreement relates – they know which particular
complaint cannot be litigated in the future. That, to my mind, is the purpose
of the requirement. It does not matter whether or not there has been a history
of communication or dialogue about the complaint. However, in these particular
cases, the Claimants had in fact done more. The facts show that they had
complained of unequal pay prior to signing the agreements.
34.
It is evident from the findings made by the Employment Judge that there
is no doubt that, by the time the Claimants attended the meetings, they were
complaining that they were the victims of unequal pay. They were evidently
amongst those who were referred to in the letter of 23 June 2004, as being
prepared to pursue equal pay claims if necessary, they had chosen to attend
initial briefing sessions about the equal pay situation that were given by the Respondent,
they had received offers of compensation, they had chosen to respond by
attending the group sessions with solicitors and had then chosen to have one to
one meetings with solicitors. They had entered into compromise agreements
which referred, in terms, to claims under the Equal Pay Act 1970. These
were, manifestly, the actions of women whose position was that they were
dissatisfied at having received unequal pay, as compared to men. They were,
furthermore, actions of which the Respondent was well aware.
“Advice”
35.
The statutory requirement is that the employee must have received advice
from a relevant independent adviser but only as to the “terms and effect of the
proposed agreement”. It does not require that the relevant independent adviser
offer a view as to whether or not the deal that is on offer is a good one or
whether or not he thinks that the employee should accept it.
36.
There were two strands to Mr Mitchell’s argument. On the one hand, he
submitted that, in part, the Claimants received advice from an unidentified
person, namely the person who gave the group presentation. He likened that
advice to “advice from a man at the bus stop”. On the other hand, whilst he
accepted that they had received advice from the individual solicitors as to the
effect of the agreements, they had not received advice as to their terms. That
advice had emanated from the unidentified solicitors who gave the group
presentations and had to be ignored when asking whether the statutory requirements
had been complied with. Advice had also been given by others such as the Respondent.
He resisted any suggestion that the group presentation advice had been
incorporated into the advice given by the individual solicitors. What had
happened here was, he submitted, that a minimalist approach had been adopted.
That put no responsibility on the individual advisers at all – the Respondent’s
approach was to say that if someone else had given advice then they needed to
give no advice at all. There was no proper advice given in the context of a
solicitor –client relationship. The employees had not, here, been put in the
position of being able to give informed consent because they had no guidance as
to what course of action was in their best interests. Equally though, he
accepted that there was no “bright line” to be drawn between the giving of
information and the giving of advice.
37.
For the Respondent, Mr Bowers submitted that SDA section 77 said
nothing about the need for informed consent, assessment of the value of the
claim, assessment of likelihood of success or advice as to whether or not the
deal on offer ought to be accepted or not. If Parliament had so provided that
would have given rise to a raft of satellite litigation on the issue of whether
or not satisfactory advice had been given. In truth the Claimants were here
arguing a perversity appeal. The Employment Judge had heard the evidence and
was satisfied that the Claimants had received advice on the terms and effect of
the compromise agreements. It was, he said, plainly open to her to do so, as
exemplified by the fact that it was accepted on behalf of the Claimants that
there was no bright line between information and advice. It was a travesty to
suggest that the advice at the presentations, which was manifestly incorporated
in the advice given by the individual solicitors, was no more than such as
could have given by a man at the bus stop. The presentations had been
carefully put together by six leading independent law firms who specialised in
employment law. A check was made to see that the Claimants had seen and heard
the presentations and they were given copies of the slides. They were part of
the overall advice given. The presentations were adopted and it would have
been ludicrous to expect each individual solicitor to give the presentation
again.
38.
The Employment Judge found that the group presentations formed part of
the advice given to the Claimants. At p.39 of her judgment she explains:
“… I have to address whether the advice given in the
presentation could form part of the advice for the purposes of section 77. I
have found this quite difficult as clearly there is no individual relationship
of solicitor/client until at the earliest, the employee meets the solicitor in
the individual sessions. However after reflection I have concluded that the
presentation did form part of the advice. This was arranged by the solicitor
and delivered essentially on his/her behalf with the clear intention of all the
solicitors involved that it would be followed by individual sessions that
founded on the presentation. Further the presentation was referred to by the
individual solicitor in each meeting, copies of the slides given over and the
solicitor would not have gone ahead with the agreement if the claimant had said
she not seen the presentation. The individual sessions made no sense without
the presentation.”
39.
She recognised that the Claimants did not receive the advice they had
hoped for, namely whether or not the agreement was in their own best interests
but rejected the argument that any such advice was required for compliance with
the statutory provisions.
40.
At p.41, the Employment Judge added:
“If I am wrong in my conclusion that the presentation formed
part of the advice, then I would have found that the individual sessions in
isolation were not sufficient … Without the presentation, the individual
meetings amounted to not much more than ‘this is the amount on offer’, ‘you can
take it or leave it, it’s up to you but if you sign you won’t be able to bring
a claim’. That, I agree with Mr Mitchell is not advice on anything other than
the effect of the agreement and that is not enough.”
and that observation formed the subject of a cross appeal which
Mr Bowers stressed was not necessary for his argument on this matter to
succeed. The only way that matters could, he submitted, be approached was that
the presentation material did form part of the advice given – there was ample
evidence, all accepted by the Tribunal, which was to that effect. In short,
his argument on the cross appeal was essentially the same as his main argument
on this aspect of the appeal, namely that the presentations could not be
divorced from the individual sessions and that as whole the statutory
requirements were met.
41.
I have no difficulty in rejecting the Claimants’ argument. On the facts
found the Employment Judge was plainly entitled to find that the Claimants had
received advice from their own identified adviser as to the terms and effect of
the compromise agreements. The Employment Judge was satisfied that the advice
given via the group presentations was incorporated into the advice given by the
individual solicitors and that once all these communications were taken into
account, advice had been given on the terms and effect of the compromise
agreements. She was right to do so. There was no basis in the evidence for
dissecting out the advice that emanated originally from the group presentations
given that the individual solicitors knew exactly what was in the presentations,
referred to them at the individual meetings, and provided each Claimant with
her own copies of the slides. Insofar as Mr Mitchell’s approach involved
characterising the individual solicitors as having in effect abrogating their
responsibilities so far as the giving of advice was concerned, I reject it as
an unfair characterisation of what, on the findings in fact, happened.
Furthermore, it seems plain from the evidence that was given that the real
concern of the Claimants was not that they had not been told what the terms of
the agreement were or what was their effect – rather, it was that they had not
been told whether or not their individual solicitors thought that the deal on
offer was a good one for them personally. That, however, is not something that
section 77 requires an adviser to do in these circumstances.
42.
Regarding the cross-appeal, it seems to me that it proceeds on a
misunderstanding of the Employment Judge’s approach. The view she expresses
that was under attack proceeds on the hypothesis that the individual meetings
required to be approached on the basis that none of the advice given at the
presentations was to be regarded as being incorporated into them (a factual
hypothesis which she rejected). On the facts, if that advice was stripped out,
it does seem that the advice given would have been lacking (and I think that Mr
Bowers would have accepted that) since it would not have included anything as
regards the “terms” of the agreement. She is not, however, saying that if the group
presentations alone were to be ignored, that would not do – she seems to accept
that so long as there was incorporation into the meeting of that advice, that
would suffice.
“Acting in the Matter”
43.
There is no doubt that, as solicitors, the advisors in these cases were
“relevant independent advisors”. The question that arose under this chapter is
whether, when advising the Claimants, they were also “acting in the matter” for
the Respondent. The phrase is not further defined so has to be given its ordinary
meaning. Indeed, Mr Mitchell accepted that the question was fact specific.
44.
Although not articulated as such, this too was in truth a perversity
appeal. Mr Mitchell pointed to the fact that the Respondent had met with the
six firms of solicitors who ultimately acted for the Claimants, that they had
agreed between themselves how matters would be approached before they had any
contact with the Claimants, that there was no apparent consideration by them as
to whether or not they should be proceeding at all, the Respondent paid their
fees, that having started on one basis of looking for information that would
enable them to give individual advice, they departed from that, and that the
compromise agreements were essentially being put forward on a “take it or leave
it” basis. He accepted that the solicitors were in good faith and did not
think that they were acting for the Respondent but if one stepped back and
looked at matters “in the round” it could be seen, he said, that that was what
they were doing. Everything was pro-actively driven by the Respondent and
their solicitors and all in a context where there were no prior complaints. He
did not put much weight on the matter of agreement between the solicitors and
the Respondent as to the logistics of how matters would be approached or on the
fact of payment of fees but they were all part of the overall picture.
45.
Mr Bowers submitted that this question was ultimately one of fact and
degree for determination by the Employment Judge. It was evident on the facts
that the individual solicitors were acting to protect the interests of the Claimants
even before they became clients. They owed them a duty of care from the point
at which they became potential clients: A Paterson & B Ritchie – Law and
Practice & Conduct for Solicitors p.67, 69. He reviewed the whole
facts and circumstances in which the solicitors acted for the Claimants and
submitted that there was no basis on which it could be concluded that they were
also acting for the Respondent.
46.
The Employment Judge deals with this argument at p.39-40. Whilst
accepting that the solicitors did not begin acting for the Claimants until the
individual solicitor/client meetings they were all, prior to that, acting to
protect the interests of a group of potential clients which included the Claimants
and there was no question of them acting for the Respondent. She explains:
“The solicitors themselves were very clear who they were acting
for. They made this clear to the Council and it was spelt out in the invitation
from Mr Miller and the subsequent correspondence from the Council. This was
consistent with the way they acted having been appointed. They negotiated
changes to the compromise agreements that were favourable to the employees.
The respondents were not permitted access to the presentation and were kept a
sufficient distance from the individual sessions to ensure confidentiality.
There was no financial incentive for the solicitors to ‘get employees signed
up’. The fee was the same whether none or all employees signed. The employees
were specifically told that the solicitors were independent.”
47.
So far as the restricted nature of the advice that was given was
concerned, the Employment Judge found that whilst that arose because of
limitations in the information provided by the Respondent, that did not show
that the solicitors were acting for them. She observed:
“I accept that the scope of the advice was dictated by the
information provided by the employer. However that could be the case in any
consultation on a compromise agreement.”
48.
I cannot fault the reasoning of the Employment Judge. The facts pointed
only to the solicitors having acted for the Claimants and in no respect did
they indicate that, at any time in the course of events, they were acting in
the matter for the Respondent. Indeed, the Respondent and their solicitors
give, rather, the impression that they were at pains to see to it that the Claimants
were provided with advice that was truly independent of them by solicitors who
were not in any sense acting for them. It is difficult to see what more they
could have done in that regard.
Disposal
49.
I will, in these circumstances, pronounce an order dismissing the
appeal. The cross appeal then becomes unnecessary but, in the circumstances, I
will dismiss it also.
