What were the facts?
In May 2003, Redcar Council agreed with the recognized unions to implement the 1997 single status (or Green Book) agreement introducing a new pay structure with effect from 1 April 2004.
It also started negotiations with ACAS and the unions to settle the potential claims of employees up to the date of implementation, based on their length of service and hours of work.
At around the same time, a number of women employees lodged equal pay claims, comparing themselves with men in predominantly male-dominated jobs. The Council admitted it was in breach of the Equal Pay Act.
The negotiations with the unions continued and in January 2004, ACAS produced a COT3 (or conciliated agreement), in “full and final settlement” of all claims in connection with the terms of the women’s contracts. A covering letter from the Council made clear that employees who accepted the offer would forfeit their statutory rights to bring equal pay claims.
A large number of women accepted the negotiated deal, but then lodged equal pay claims, as did women working for Stockton Borough Council where similar facts applied.
What did the tribunal decide?
The tribunal struck out the women’s claims on the ground that they had been validly settled up to the date when they signed and returned the COT3, although not up to 1 April 2004.
This was despite the fact that the claimants “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”.
Nor were the agreements void for “unconscionable conduct” by the employers, but even if there had been such conduct, the tribunal said that the claimants had endorsed the COT3 by receiving and cashing their settlement cheques.
The women appealed, arguing that the ACAS officer had not fulfilled her duties under section 18, as the agreement had not been made “with the assistance of a conciliation officer” as required under section 77 of the Sex Discrimination Act.
What did the EAT decide?
The EAT said that the COT3 was valid and that the claimants could not therefore bring equal pay claims.
It looked in particular at the duties of an ACAS conciliation officer under section 18 of the Employment Tribunals Act, and set out the following principles:
ACAS officers have no responsibility to ensure that the terms of the settlement are fair on the employee
the expression “promote a settlement” must be given a liberal construction, depending on the circumstances of the particular case
ACAS officers must not give advice about the merits of a case
Tribunals must not consider whether the ACAS officer correctly interpreted their duties; the officer just has to have intended to act as per section 18
if the ACAS officer acted in bad faith or adopted unfair methods when promoting a settlement, the agreement might be set aside and might not operate as a bar to proceedings.
Contrary to what the claimants argued, therefore, officers were not under a duty to give advice, to evaluate the claims and to ensure that the claimants understood the nature and extent of all their potential claims.
Finally, the EAT said that the tribunal was wrong to hold that each COT3 only settled the claimants’ equal pay claims up to the date on which they signed. Instead, it made an order that the agreements settled the claims up to 1 April 2004.