Appeal No. UKEATS/0036/10/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 9 & 10 March 2011

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

MS LINDA McWILLIAM & OTHERS	APPELLANTS

GLASGOW CITY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	MR JONATHAN MITCHELL
(One of Her Majesty’s Counsel)
Instructed by:
Fox Cross Solicitors Limited
44 York Place
Edinburgh
EH1 3HU	
For the Respondent	MR JOHN BOWERS
(One of Her Majesty’s Counsel)
Instructed by:
MacRoberts LLP
Capella
60 York Street
Glasgow
G2 8JX	

SUMMARY
SEX DISCRIMINATION
PRACTICE AND PROCEDURE – Compromise

Compromise agreements.  Whether compliance with section 77(4B) of the Sex Discrimination Act 1975.  Equal pay Claimants.  No prior claims presented to Employment Tribunal.  Whether the compromise agreements related to “particular complaints”?  Whether the Claimants “received advice” from an “independent adviser”?  Whether their solicitors were “acting in the matter for the Respondent”?  A local authority, in anticipation of having to face thousands of equal pay claims, met with unions and agreed settlement proposals then contacted various large firms of solicitors who agreed to act for individual employees.  The employees were invited to meetings at which, as a group, they received a PowerPoint presentation from one of the solicitors and thereafter had individual meetings with solicitors during which compromise agreements were signed.  On appeal, Tribunal’s judgment that the compromise agreements met the statutory requirements and were valid, upheld.

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 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.