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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Clarke & Ors v Redcar & Cleveland Borough Council & Anor [2006] UKEAT 0407_05_2202 (22 February 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0407_05_2202.html Cite as: [2006] IRLR 897, [2006] ICR 897, [2006] UKEAT 407_5_2202, [2006] UKEAT 0407_05_2202, [2006] IRLR 324 |
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At the Tribunal | |
On 12-14 December 2005 | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR B R GIBBS
MR P A L PARKER CBE
FIRST APPELLANT | |
FIRST RESPONDENT | |
SECOND APPELLANT | |
SECOND RESPONDENT | |
INTERVENING |
Transcript of Proceedings
JUDGMENT
For the First & Second Appellants |
MR CHRISTOPHER QUINN (of Counsel) Instructed by: Messrs Stefan Cross Solicitors St Mary's Business Centre Oystershell Lane Newcastle-Upon-Tyne NE4 5QS |
For the First Respondent For the Second Respondent For ADVISORY CONCILIATION AND ARBITRATION SERVICE |
MR JOHN CAVANAGH (one of Her Majesty's Counsel) Mr RICHARD LEIPER (of Counsel) Instructed by: Ms S Langridge Employment Lawyer 8 Stratford Grove Terrace Newcastle-Upon-Tyne NE6 5BA MR PAUL CAPE (of Counsel) Instructed by: Stockton on Tees Borough Council Legal Services Municipal Buildings P O Box 11 Church Road Stockton on Tees TS18 1LD MR GERARD CLARKE (of Counsel) Instructed by: Treasury Solicitor's Department Employment & Commercial Contract Group Floor 9, Zone 2 1 Kemble Street London WC2B 4TS |
SUMMARY
Appeals against Employment Tribunals' decisions upholding the validity of conciliation contracts effected with the assistance of ACAS officers so as to preclude the Claimants from issuing and enforcing equal pay claims. In each case, ACAS officers discharged their functions under s77 Sex Discrimination Act 1975 and s18 Employment Tribunals Act 1996 which are to be read together. In the Redcar case, the unions had authority to negotiate offers, but not to enter into legally binding agreements, on behalf of the members and non-members. An allegation that the officer lacked independence and impartiality in the Stockton case was dismissed on the facts. Submissions on behalf of ACAS, intervening at the invitation of the EAT, were accepted as to the role of ACAS officers under the law.
HIS HONOUR JUDGE McMULLEN QC
Introduction
"1 The COT3 agreements signed by the sample claimants were valid applying section 77(4) of the Sex Discrimination Act and/or section 18 of the Employment Tribunals Act to settle the equal pay claims in respect of the period leading up to the date when each claimant signed and returned the COT3, but not in respect of the period thereafter up to 1 April 2004.
2 The COT3 agreements were not void or voidable for unconscionable conduct on the part of the respondent.
3. Even if there has been conduct which is to be interpreted as being unconscionable, the claimants affirmed the COT3 agreements by election by receiving and cashing the settlement cheques or are estopped from asserting that the COT3 applications are void by that act, which was to the respondent's detriment".
The context
The legislation relating to settlements
"210 Conciliation
(1) Where a trade dispute exists or is apprehended ACAS may, at the request of one or more parties to the dispute or otherwise, offer the parties to the dispute its assistance with a view to bringing about a settlement.
(2) …..
(3) In exercising its functions under this section ACAS shall have regard to the desirability of encouraging the parties to a dispute to use any appropriate agreed procedures for negotiation or the settlement of disputes.
211 Conciliation officers
(1) ACAS shall designate some of its officers to perform the functions of conciliation officers under any enactment (whenever passed relating to matters whi.ch are or could be the subject of proceedings before an [employment tribunal].
"18 (1) This section applies in the case of employment tribunal proceedings and claims which could be the subject of employment tribunal proceedings
(a) under
(i) section 2(1) of the Equal Pay Act 1970,
(ii) section 63 of the Sex Discrimination Act 1975,…..;
(2) Where an application has been presented to an employment tribunal, and a copy of it has been sent to a conciliation officer, it is the duty of the conciliation officer-
(a) if he is requested to do so by the person by whom and the person against whom the proceedings are brought, or
(b) if, in the absence of any such request, the conciliation officer considers that he could act under this subsection with a reasonable prospect of success,
to endeavour to promote a settlement of the proceedings without their being determined by an employment tribunal.
(3) Where at any time-
(a) a person claims that action has been taken in respect of which proceedings could be brought by him before an employment tribunal, but
(b) before any application relating to that action has been presented by him a request is made to a conciliation officer (whether by that person or by the person against whom the proceedings could be instituted) to make his services available to them,
the conciliation officer shall act in accordance with subsection (2) as if an application had been presented to an employment tribunal".
"77.
….
(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.
(4) Subsection (3) does not apply-
(a) to a contract settling a complaint to which section 63(1) of this Act or section 2 of the Equal Pay Act 1970 applies where the contract is made with the assistance of a conciliation officer;
[(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;]
(b) to a contract settling a claim to which section 66 applies."
The legal principles
"…shop stewards of the union have a general implied authority to act in the interests of the members they represent and in particular to defend and improve their rates of pay and working conditions".
This authority is found in the rule book and in the custom and practice of the union. We are in no doubt that such authority also exists for union officers above the level of shop stewards to so act for members, and this was made clear in Chappell v Times Newspapers Ltd [1975] 1 WLR 482 CA at 500 C-H per Lord Denning MR:
"... the members themselves must be taken to authorize whatever the union or its officials do on their behalf. I mean, of course, in negotiating better terms or taking industrial action in support of them. Each member must be taken to authorize what is done in these respects on behalf of each and all of them, unless he specifically disavows it.'"
a. The ACAS officer has no responsibility to see that the terms of the settlement are fair on the employee (Moore at p 87D-E per Lord Russell).
b. The expression "promote a settlement" must be given a liberal construction capable of covering whatever action by way of such promotion as is applicable in the circumstances of the particular case (Moore at p 98A per Lord Brandon).
c. The ACAS officer must never advise as to the merits of the case. It would be quite wrong to say that an ACAS officer was obliged to go through the framework of the legislation. Indeed, it might defeat the officer's very function if s/he were obliged to tell a claimant, in effect, that they might receive considerably more money (Slack at p 625G626B).
d. It is not for the tribunal to consider whether the officer correctly interpreted her duties; it is sufficient that the officer intended and purported to act under the section (Hennessy at p 467 per Sir John Donaldson MR).
e. If the ACAS officer were to act in bad faith or adopt unfair methods when promoting a settlement, the agreement might be set aside and might not operate as a bar to proceedings (Slack at p 626D).
"The purpose of section 140, read with section 134 of the Act of 1978, is undoubtedly to ensure that employees shall not surrender their rights without first receiving independent advice and assistance from skilled conciliation officers of Acas".
"9. In our judgment the law as to contracts for release is pretty straightforward. The law does not decline to allow parties to contract that all and any claims, whether known or not, shall be released. The question in each case is whether, objectively looking at the compromise agreement, that was the intention of the parties, or whether in order to correspond with their intentions some restriction has to be placed on the scope of the release. If the parties seek to achieve such an extravagant result that they release claims of which they have and can have no knowledge, whether those claims have already come in existence or not, they must do so in language which is absolutely clear and leaves no room for doubt as to what it is they are contracting for. We can see no reason why as a matter of public policy a party should not contract out of some future cause of action. But we take the view that it would require extremely clear words for such an intention to be found".
"Almost all the old intellectual baggage of 'legal' interpretation has been discarded. The principles may be summarised as follows:
(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the 'matrix of fact,' but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.
(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax. (see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd. [1997] 2 WLR 945)/
(5) The 'rule' that words should be given their 'natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in The Antaios Compania Neviera S.A. v. Salen Rederierna A.B. [1985] 1 A.C. 191, 201:
'. . . if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.'"
The facts in Redcar
"10.3 At the beginning of July, Mr Moore became aware of the existence of a leaflet from the now claimants' solicitor, Mr Cross, which had been circulated in a school, seeking clients to take equal pay claims to a Tribunal. It is necessary at this stage to make some observations about the position of Mr Cross because it is relevant to the Tribunal's considerations. Mr Cross is a solicitor with an extensive equal pay practice based in the North East of England. He has presented claims to the Tribunal on behalf of local authority employees throughout the North East of England. He was previously a partner in Thompsons, solicitors, who have had as clients trade unions such as the GMB and Unison. Those unions represent a large number of local authority employees. Many of Mr Cross's clients are current members of those unions. Some are not members of any Union. Mr Cross and the trade unions are not on the best of terms and their perceptions as to the best interest of the members differ widely.
10.4 ….It is to be noted that Mr Cross had launched the first of what was to become a large number of equal pay claims against the respondent on 27 July 2003. According to Mr Moore, the Council wrote to Mr Cross asking for time to conclude an agreement but the only response was a request to be a party to the negotiations. Again according to Mr Moore, it was explained that negotiations between the respondent and the unions could not include a lawyer engaged in litigation against one of them.
10.11 Mr Moore had been conducting general road shows with members of staff from the time that he became chief executive in January 2000. Following the Agreement of 29 January 2004, he held nine road shows for staff in order to explain the agreement and to answer questions. Those took place between 5 and 11 February 2004 and there is an issue of fact as to precisely what he said in relation to the right of employees to proceed with individual equal pay claims. At the first of these road shows, a representative from Mr Cross's firm attended and interrupted proceedings. He also handed out promotional leaflets at that and other meetings setting out the advantages of pursuing a claim in the Tribunal as opposed to accepting the offer made by the respondent in conjunction with the union. It is also obvious that particular briefing of the press was taking place by both sides as is indicated, in particular, by pages R167 to 178. By 'both sides', the Tribunal means the Council, supported by the Unions, on one side, and Mr Cross on the other.
13.6 … As to the conflict of interest point, we recognise that it is not for the Tribunal to make a judgment as to the merits of the stance of the Trade Unions and respondent on the one hand and of Mr Cross on behalf of his clients or potential clients on the other. We recognise the realities. The respondent had concerns that the potential claims of its employees could, as Mr Moore put it at Road Shows, "bankrupt" the Council. These claims had and have the potential for politically unacceptable increases in Council Tax or substantial redundancies amongst the Council's employees in order to balance the books. The latter factor was clearly a concern of the Trade Unions and to that extent the interests of the respondent and the Trade Unions were common. Equally, if, as Mr Cross has vociferously claimed in Press Releases and Leaflets, there has been a blatant breach of Equal Pay Act lasting over 20 years which has disadvantaged women local authority employees, then that is a matter which should be remedied as soon as possible. This is a point which is also relevant to the issue of unconscionability.
13.5 …..There is an unusual aspect to this case. That is that the Trade Unions and the respondent had a common interest in reaching agreement to settle the potential equal pay claims as economically as possible which was in stark contrast to the stance subsequently adopted by Mr Cross… "
The Redcar agreement
"As you may be aware the Council have been in discussions with the Trade Unions on the implementation of the job evaluation scheme, which forms part of the Single Status Agreement 1997. All such discussions have been facilitated by ACAS (Advisory Conciliation Arbitration Service), the independent Government advice service.
Part of the implementation of job evaluation requires a new pay model to be developed. The Council and Trade Unions have agreed a new pay model which they believe will eradicate any form of discrimination. You should have moved onto the new pay system on 1 April 2004.
Other discussions that have been taking place have explored how the Council might address the issue of any perceived discrimination which may have occurred in the past. In reaching an agreement to compensate those staff that may have suffered past discrimination, the Council and Trade Unions have sought advice from ACAS.
Attached is a COT3 agreement drawn up by ACAS which outlines what compensation the Council are offering to you. The amount of compensation offered depends upon the length of time you have worked for the Council and the number of hours per week you were contracted to work as at 30 September 2003. If you accept this offer, you will give up any statutory right to challenge any Equal Pay claim you think you have against Redcar & Cleveland Borough Council at an Employment Tribunal. Therefore, you must seek advice before you sign the agreement which is a legally binding document. This means that having signed the document, you will not be able to change your mind at a later date and seek further compensation from the Tribunal".
"Agreement following conciliation on a claim made by the Employee to the Advisory Conciliation and Arbitration Service (No application made to Tribunal at time of agreement) that action had been taken by the Employer in respect of which a complaint of equal pay could be made to an Employment Tribunal.
Settlement reached as a result of conciliation action.
We the undersigned have agreed
That the Employer will pay and the Employee agrees to accept the sum of £«Compamt». This is an ex-gratia payment of compensation for hurt feelings for perceived sex discrimination and is in full and final settlement of all claims the Employee has brought or could bring against the employer in connection with the terms of their contract of employment.
This settlement does not affect any rights the Employee may have in relation to personal injury claims or accrued rights to the company pension scheme.
The parties believe this payment is not subject to tax or national insurance deductions.
The parties agree to keep the terms of this settlement confidential and not to disclose them to any third party save as may be required to be disclosed by law or to a professional adviser.
Payment of the above sum will be made to the Employee, by cheque, within 10 working days of the Employer receiving this agreement form signed by the Employee".
Discussion and conclusion on the Redcar appeal
Construction of the documents and Redcar's cross-appeal
"The COT3 agreements signed by the sample claimants were valid applying section 77(4) of the Sex Discrimination Act and section 18 of the Employment Tribunals Act to settle the equal pay claims in respect of the period up to 1 April 2004".
Was a claim made or ratified?
The actions of the conciliation officer
"13.5 Notwithstanding the above, we have some significant criticisms of the participation of ACAS. There were other steps which ACAS could have taken which were reasonably practicable. First, we think it would have been better if public meetings had been set up attended by ACAS offices to explain the terms on offer and to answer questions in a case involving so many potential Tribunal claimants. This is what happened in BCCI -v –Ali, as is clear from the judgment of Lightman J at first instance. This was particularly so since Ms Fairfax has indicated that she did not consider it to be her duty to speak to each individual claimants or potential claimants and 'we accept that there is no positive obligation to do so. In any case it would have been wholly impracticable to have identified all the potential claimants and contacted each one. Ms Fairfax withdrew her evidence that lack of resources prevented ACAS from arranging public meetings. Secondly, in a case of this complexity it would have been appropriate to include a recommendation that recipients of the COT3 offer should seek legal advice if unclear as to their legal rights. We note that these steps were taken in later local authority cases in this region where the COT3 is a great deal more detailed and the accompanying letter even more so.
13.6 However our firm conclusion is that the actions of ACAS in the present case were such as to produce effective COT3 settlements… At this stage we are only concerned with the issues whether the actions of ACAS were sufficient to promote agreements complying with section 18(2) of the Employment Tribunals Act and/or section 77(4) of the Sex Discrimination Act. We unanimously find that they were".
Sharp practice
The facts in the Stockton case
"i. 'We have had some concern regarding the promotion of the settlement…
ii. 'It appears that at the time of acceptance they were not aware of the possibility that they could receive a more substantial amount if the case was taken to a tribunal and they were successful'
iii. 'The claimants were sent documentation explaining the position in regard to the settlement but the documentation is not entirely clear as to what is being settled'.
iv. 'The claimants did not understand, as was demonstrated in their evidence, what an equal pay claim is and whom was being compared to whom'.
v. 'Very little notice of the settlement was given to the claimants.'"
The Stockton agreement
"AGREEMENT FOLLOWING CONCILIATION ON A CLAIM MADE BY THE EMPLOYEE TO THE ADVISORY, CONCILIATION, ARBITRATION SERVICE (NO APPUCATION MADE TO TRIBUNAL AT TIME OF AGREEMENT) THAT ACTION HAD BEEN TAKEN BY THE EMPLOYER IN RESPECT OF WHICH A COMPLAINT OF EQUAL PAY COULD BE MADE TO AN EMPLOYMENT TRIBUNAL
Settlement reached as a result of conciliation.
We the undersigned have agreed:
That the Employer will pay and the Employee agrees to accept the sum of £ in full and final settlement of
(i) any claim for or in respect of sex discrimination or equal pay either in English law (including without limitation the Equal Pay Act 1970 and the Sex Discrimination Act 1975) or European law (including without limitation Article 141 of the Treaty of Rome and Directives related thereto) and any claim for compensation (including compensation for injury to feelings) or arrears of pay which is related to such a claim or which is based on the assertion that the Employee's present terms and conditions of employment or benefits (or any previous terms and conditions of employment or benefits) infringed or failed to reflect or implement an equality clause or any of the aforesaid rights
(ii) any other claim arising out of or connected with the Employee's contract of employment (or any previous contract of employment) between the Employee and the Council save that this settlement does not affect any rights the Employee may have in relation to personal injury claims or accrued rights to the Local Authorities pension scheme.
This payment is not subject to tax or National Insurance deductions.
The payment of the above sum will be made to the Employee. by cheque. by 31st May 2004 if the agreement has been signed by 14th May 2004 and within 15 working days of the Employer receiving this agreement form signed by the Employee thereafter."
"Dear Employee
The Council and the Trade Unions, with help from ACAS (the Advisory Conciliation and Arbitration Service) have been involved in discussions regarding the implementation of Job Evaluation and equal pay issues.
Job Evaluation for all jobs up to Scale 6 is going on now and it is hoped that a new pay and grading structure will be implemented by April 2005.
Employees may be aware that litigation has started in the Employment Tribunal about whether aspects of terms and conditions enjoyed by some groups of staff in some Councils are discriminatory or fail to reflect the right to equal pay. Only a few cases have been brought against Stockton-on-Tees Borough Council. The Council denies there has been any discrimination or breach of the right to receive equal pay and is defending, and will continue to defend, vigorously those claims which have been brought against it.
However, the Council and the Unions agree that in view of the imminent implementation of the new pay structure it is best to look forward than to be involved in lengthy legal proceedings. To this end the Council has decided to offer a settlement payment to a number of groups of employees who may be affected by equal pay issues. The Council and Trade Unions believe that the payment being offered represents the best negotiated position which can be reached and which safeguards jobs for the future.
The payment being offered will be made by 31st May 2004 (if your signed COT3 is received by 14th May 2004) or as soon as possible after this. Before any payment is made you will have to sign a COT3 Agreement as detailed below.
The payment that the Council is offering has been calculated by taking into account your length of service (maximum for the purposes of calculation being 6 years) as at 31.12.03 and weekly hours of work. Attached is a copy of the table setting out the whole formula. The payment is not subject to tax or National Insurance. The payment offer has been discussed with the Trade Unions, and it is a full and final offer and is not negotiable.
ACAS has a legal duty to try to help resolve actual or potential claims to Tribunals. We have therefore asked ACAS to assist in trying to reach settlement of any possible claims. Attached is an agreement (known as a COT3) which has been produced on a form provided by ACAS and which outlines the payment being offered to you.
If you wish to accept and receive the sum offered, you must agree to give up any claim, or potential claim under domestic or European law which you may have against the Council for equal pay or sex discrimination (or for pay or compensation related to such a claim) or any claim arising out of or connected with your terms of employment except that the settlement would not affect any rights you might have in relation to personal injury claims or accrued rights to the Local Authority's pension scheme.
We recommend that you consult your Trade Union or talk to ACAS and take legal advice before you sign this document, which will be legally binding upon you. The Trade Unions have access to legal advice should you choose to consult them. If you sign the COT3 you will forego the right to make a claim to the Employment Tribunal (or any court) on the matters covered by the COT3.
Before accepting the offer and completing the attached form we strongly suggest that you take independent advice. Representatives from ACAS and the trade unions will be available on Monday 10th May at Thornaby Pavilion to provide you with information and we would urge you to take this opportunity to talk to someone. Please read the attached newsletter for further details. Advice can also be obtained from the Citizen Advice Bureau or from a firm of solicitors or employment specialists.
If you have any queries about the hours of work or length of service bands shown for you, or the process, please ring the helpline (01642) 528413/526985 and we will try and resolve your query as soon as possible. The contact numbers for Trade Union Representatives and ACAS are shown below. They can advise you on the implications of the offer but the decision as to whether to accept the payment offered is, of course, yours and yours alone".
"SETTLEMENT OFFER
You will have to decide whether to accept the Council's settlement offer. The decision is yours. All offers have been calculated from a formula that takes into account length of service and weekly hours. Whilst the Trade Unions have been involved in discussions in order to make the settlement offer as large as possible, and ACAS has been involved in helping us reach a settlement with the Council, it is the Council that is making you this offer.
If you- accept the Council's offer you will be giving up your right to make a claim to the Employment Tribunal on the basis that the Councils past and present employment practices infringed the equal pay and sex discrimination legislation. Therefore, whether or not to accept this offer is an important decision, so you should take appropriate independent advice before you make that decision.
EMPLOYMENT TRIBUNAL
Some people have asked us about those Council employees who have made Employment Tribunal claims, and large amounts of money have been mentioned as being recoverable in those cases. Any Council employee has the right to make a claim to the Employment Tribunal if they feel they have a case.
The Council's offer is not subject to any tax and National Insurance deductions, it is the total sum you will receive and will be paid by 3151 May 2004 provided your signed COT3 is received by 14th May 2004. It is impossible to know when the outstanding claims will be finally concluded as a full hearing date has not yet been fixed and any Tribunal decision may be appealed by the unsuccessful party. Even if these claims are successful it is not possible to predict the award a Tribunal may make. It could be greater or smaller than the amount the Council is now offering you. Employment Tribunal awards are liable to deductions for Income Tax and National Insurance contributions. Secondly, legally represented claimants will have to pay legal costs.
CONSULTATION
If you want to discuss this offer with your Trade Union Representative, please do so using the appropriate telephone number listed below. All Trade Union members and colleagues are also entitled and encouraged to contact the ACAS representative".
"Stockton on Tees Council – Single Status Agreement and Settlement Payments
You are receiving this statement because your employer and the recognised trade unions have requested Acas (the Advisory Conciliation and Arbitration Service) to assist in trying to bring about individual settlements between the Council and those of its employees who may have cause to make a complaint of Sex Discrimination and/or Equal Pay to Employment Tribunal, arising from the Single Status Agreement introduced by Stockton Council with effect from 2005 [sic]. Acas has a legal duty to act upon requests for conciliation made In these circumstances.
Acas is an independent body, It does not represent the interests or views of the employer, trade unions, the Government or the Employment Tribunal system. Acas's role in this matter is to act impartially so as to seek to bring about voluntary agreements (called COT3 settlements) where individuals have an actual or potential complaint against their employer about Individual employment rights, but wish to settle their complaint instead of going to an Employment Tribunal hearing.
The Council are offering you a payment, as specified in their letter to you, in settlement of your potential complaint to an Employment Tribunal. If you were to accept this offer you would be required to sign an agreement on an Acas COT3 form. On this COT3 form, the offer and its terms will be the same as the enclosed copy.
The COT 3 Agreement
This COT3 agreement is legally binding when it is signed by you and your employer. If you sign it you will not be able to change your mind afterwards. The effect of signing the COTJ agreement form will be that you will give up your rights to pursue your potential complaint of sex discrimination/equal pay to an employment tribunal. The agreement will not however affect your pension entitlement or any personal injury claims you may have against Stockton Council do not have to sign the COT3 agreement if you do not wish to accept the offer. You can, if you wish, use an application to an employment tribunal if you think you have a claim for sex discrimination and/or equal pay arising out of the Single Status Agreement implemented by Stockton Council.
Action to be taken by Non-Trade Union Members
Employees who are not trade union members must contact Acas to discuss their rights and the implications of the offer. To receive the COT3 agreement you must attend the meeting at Thornaby Pavilion on 10th May 2004 between 9:30am and 7 30pm, attending the meeting puts you under no obligation to accept the offer. Alternatively you may ring Acas on 0191 2696037 (this number will be available from 10th May 2004).
You may also want to seek advice from a solicitor, Citizens Advice Bureau or another Source.
Action to be taken by Trade Union Members
The three major unions representing council staff involved have said "they consider the payments to be the best possible offer that can be negotiated".
If you are a trade union member, we strongly recommend you discuss the matter with your Trade Union Representative. Your union will be writing to you separately. Trade Union Representatives as well as Acas officers will be available on the l0th May at Thornaby Pavilion any time between 9:30am and 7:30pm."
the offer of the COT3, no construction point arises.
Discussions and conclusions on the Stockton appeal
Construction of the COT3
"We do not find that the defect in the COT3 discovered by Mrs Parker on the day of the road show invalidated the validity of the COT3s. It required correction". [We have made agreed corrections to the above].
"Ms Parker said that a problem had arisen at the commencement of the first road show. She had noticed that the wording in clause 2 of the COT3s appeared to preclude the right of employees from making any claims in the future. She had raised this with Ms McGuire. A decision had been made to proceed with the road show. Ms McGuire and Ms Parker did not tell any of the employees signing COT3s that there was this discrepancy".
The sole simple argument addressed by Mr Quinn on this point is that since a defect was revealed, it must be fatal to the Respondent's reliance upon the agreement which contained it. It is unconscionable for the Respondent to be allowed to enforce it.
The role of ACAS officers
"(1) We would go through what the individual's rights were with them -(2) that they understood what the information that they were being given meant. (3) And that they understood what the implications were of signing up to the COT3 agreement if they wanted to sign up. (4) That we don't recommend the deal -we explain of our impartiality is and confirm what our impartiality is even though outlined in the letter. We don't work for the TU, Manager or themselves, we are there purely to facility if chooses to accept.(5) That they understand the legally binding nature of the offer to COT3 and they will not be able to change their minds -they would be legally bound by that. (6) Advise people if they are not sure of what being offered seek legal advice or independent advice from CAB or Solicitor or whatever.
On occasion, people would ask us -we confirmed that they accepted they have received the offer by signing the agreement they accept that bound by the agreement if they choose to accept it.
If somebody -and it did happen -it's happened on every event -"I'm not really sure" we would take them through the process.
I'm not really sure what this is all about, we would go through the whole process with the entire group.
If somebody said "What exactly is it?" we would go through: ~ you have the right to go to an Employment Tribunal -that by receiving the letter they had been identified as a worker who was potentially affected by the issues.
If the Conciliation Officer -all experienced Conciliation Officers -and if there was any indication that people didn't understand the background to the Offer we would go through the details of the offer with them. People did say they would ask us questions -typical- "what do you think?" We would never give an opinion like that. But where somebody clearly didn't, wasn't sure -understand, we would recommend they didn't sign -they get further advice."
"108 We can find no specific criticism of the conciliation officers role at the road show apart from there were a lot of people present and that not everybody would be able to, taking into account the number of people, individually to see a conciliation officer. The correspondence sent to the individual claimants indicated that independent advice could be taken. Any individual could have spoken to a conciliation officer. However, most of the claimant and the others who were accepting the settlement, appeared content not to obtain independent advice or speak to the conciliation officer.
109 It is not the duty of the conciliation officer to give advice in the same way as an independent advisor, such as a solicitor. The conciliation officers role is much more limited than that. In accordance with Slack v Greenham (Plant Hire) Ltd the conciliation officer IS not required to inform the parties or advise them in respect of the framework of the legislation, nor advise employees of their rights and remedies.
110. ….. Delaying signing a COT3, for instance to obtain advice, would have delayed payment. It would not have prevented payment. There was no time limit on the acceptance of the settlement. It may have been that the road show was not the best vehicle to promote the settlement but we can not find that it was carried out in bad faith or that unfair methods were used in promoting the settlement. The road show had been used in other council areas. Any of the claimant could have taken independent advice if they so wished.
111 None of the claimants were forced to sign the. COT3. The correspondence sent to them stated that they could take independent advice if they so wishes. It seems to be suggested, on behalf of the claimants, that because the sums offered in settlement were, in relation to the claimants' annual salary, substantial amounts there was a duty to go further than actual took place. It had not been explained what further advice or information was required. The conciliation officer could not provide any further information, that is not the role of the conciliation officer.
112. It is suggested that the Claimants were rushed into signing the COT3s. There was no time limit on the signature of the COT3. The claimants were not required to sign the COT3s at the road show. They could sign at their leisure and, if they so chose, after taking advice".
Conclusion