Appeal No. UKEAT/0407/05/ZT, UKEAT/0580/05/ZT, UKEAT/0621/05/ZT UKEAT/0622/05/ZT & UKEAT/0623/05/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12-14 December 2005
Judgment handed down on 22 February 2006

Before
HIS HONOUR JUDGE McMULLEN QC
MR B R GIBBS
MR P A L PARKER CBE

CLARKE & OTHERS	FIRST APPELLANT

REDCAR & CLEVELAND BOROUGH COUNCIL 	FIRST RESPONDENT

WILSON & OTHERS	SECOND APPELLANT

STOCKTON-ON-TEES BOROUGH COUNCIL	SECOND RESPONDENT

ADVISORY CONCILIATION AND ARBITRATION SERVICE	INTERVENING

Transcript of Proceedings

JUDGMENT

	APPEARANCES

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

1.	This case is about the circumstances in which a Claimant who has given her written consent through an officer of the Advisory Conciliation and Arbitration Service (ACAS) to settle a claim for equal pay – a conciliation agreement – may be permitted to withdraw it. The submissions made by the Claimants challenge age-old aphorisms: a woman of full age and sound mind is bound by a contract she signs.  You cannot have your cake and eat it: here, take the money and sue. A trade union has authority to negotiate the best deal for its members. An ACAS officer acts impartially to endeavour to promote the settlement of claims.  Settlements are preferable to years of litigation, and compensation diluted by legal fees and taxation.  A local authority does not indulge in sharp practice to undermine its employees. With the exception of the last, in respect of Redcar, these preconceptions, upheld by two Employment Tribunals, remain true.

2.	The judgment represents the reasons of all three members for the judgment we gave at the end of the three-day hearing.  At the outset, we made clear to the parties that we all and particularly, Mr Peter Parker CBE, a former director of individual conciliation at ACAS, had considerable experience of ACAS procedures.  All three of us have substantial experience of job evaluation and of equal pay (I was myself one of the original members of the ACAS panel of independent experts under the Equal Pay Act 1970).  During the opening of the first case, we were shown authorities in which ACAS had been involved as a party.  We were told that ACAS had appointed Counsel on a noting brief in the first case at the Tribunal and that ACAS had considered whether to be represented here.  We reflected openly with the parties on whether we should invite ACAS to intervene and there was no objection to us taking that course, or to the continued constitution of this Tribunal.  Having been given notice, ACAS instructed Mr Gerard Clarke of Counsel to appear and make written and oral submissions at an appropriate stage in our proceedings and we are grateful to it and him for so doing.

3.	We will refer throughout to respectively the Redcar and Stockton Claimants, Respondents, and Tribunal.

Introduction
4.	The Redcar case is an appeal by the Claimants, and a cross-appeal by the Respondent on one point, against a judgment of an Employment Tribunal sitting at Thornaby on Tees over five days and two days in Chambers, registered as a reserved judgment with reasons on 4 May 2005.  This was the fourth judgment in those proceedings.  The Chairman was Mr J L L Hargrove.  The Claimants are represented today by Mr Chris Quinn of Counsel and at the Tribunal by different Counsel, both instructed by Stefan Cross & Co Solicitors.  The Respondent was represented by Mr John Cavanagh QC who today leads Mr Richard Leiper of Counsel.  

5.	The sample Claimants, all women, sought to bring claims for equal pay with men, but the Respondent contended that the claim should be struck out for they had each entered into a conciliation agreement which was binding upon them. With one exception, the Tribunal determined the issues against the Claimants holding as follows:
“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”.
6.	The appeal concerns only paragraph 1 above and the Respondent cross-appeals on the holding in the last phrase of that paragraph, the date point.  The reference to COT3 is to a conciliation agreement produced by an ACAS officer on a standard form known as a COT3.  HH Judge Ansell, by agreement of the parties, ordered a full hearing of the appeal and cross-appeal.  The judgment and reasons on the COT3 point extends for 45 pages.  

7.	The Stockton case was a reserved judgment of an Employment Tribunal sitting over 5  days at Newcastle-upon-Tyne, registered as a reserved judgment with reasons on 15 September 2005.  The Chairman was Mr N W Garside.  The Claimants there, as here, were represented by Mr Quinn and the Respondent as here by Mr Paul Cape of Counsel.  The Stockton Judgment extends to 47 pages, 14 of which deal with the COT3 point in those cases.  Two other points – the schools issue and the limitation issue – have been hived off and are due to be heard with other cases involving two other local authorities, also in the North East of England in July 2006.  Whereas in the Redcar case, the proceedings were constituted as a strike out application, in the Stockton case they were a judgment on a preliminary issue.  The result was the same.  The Claimants who had entered into what the Tribunal held to be compromise agreements, but which are in fact conciliation agreements, were bound by them.  They, too, were in the form of a COT3.  The Claimants appeal and it is important to note that no separate ground is advanced by the Respondent in its Answer for upholding the Tribunal’s judgment except for the reasons which it gave.  Directions sending this appeal to a full hearing, to be heard together with the Redcar appeal, were given by HHJ Peter Clark.  

The context
8.	The claims in both these cases are brought predominantly by women seeking equality of pay with men in predominantly male-dominated occupations within the respective Councils.  There are three routes to equal pay under the Equal Pay Act 1970.  An equality clause is incorporated by statute into the contract of employment of a woman who is doing like work i.e. work which is the same as or broadly similar to that of a man; or which is of equal value to that of a man; or which has been rated as equivalent by a job evaluation study (“JES”) (section 1(2)(b)).  A JES must meet the terms of section 1(5) which require the study to be analytic: Bromley v H and J Quick Ltd [1988] ICR 47, 623  A claim for contravention of the equality clause may be presented to an Employment Tribunal and may include a claim for arrears of remuneration or damages (section 2(1)).  A judgment in favour of a Claimant is a “determination” (section 2(4)) and in practice starts with a declaration that the equality clause is included in the Claimant’s contract and has been contravened.  In most cases, a claim must be brought during the life of the contract of employment or within six months of its ending (section 2(4)).  

9.	As originally enacted in section 3, an additional, collective, route was available at the instance, for example, of a trade union to establish equality of pay, but this was repealed in 1986.  Thus the three routes to equality of pay under this Act are all by individual complaint to an Employment Tribunal.  The claims here are based on both the equal value and the JES sub-sections. 

10.	Between 1987 and 1988, collective bargaining went on at national level through the National Joint Council for Local Authorities Manual Workers Services.  The principal trade unions are the Transport and General Workers’ Union, Unison, and GMB.  They concluded an agreement contained in and known as the White Book with effect from 1988.

11.	In 1997, a further collective agreement known as the Single Status Agreement and contained in the Green Book was concluded in a newly merged forum, the NJC for Local Government Services.  As its title implies, it was intended by the parties to eliminate the difference in pay and bargaining structures between manual and white collar workers.  It was designed to be the basis for local agreements in each local authority. Both at national and local level, the purpose was to ensure that local authority staff were on a common pay and grading structure which harmonised terms and conditions based upon equal pay principles.  On 29 January 2004 at Redcar, new terms and conditions based upon the new JES and known as Green Book terms and conditions were agreed and were introduced on 1 April 2004. On 22 April 2004, agreement was reached at Stockton in anticipation of an agreement to introduce Green book terms and conditions in April 2005.  

12.	The package included compensation to individual employees worked out in different ways in different authorities.  Redcar had allocated £3.5 million to this project and had Inland Revenue approval for the payments to be made without deduction of tax and, we take, it National Insurance.  Stockton had allocated £3.6 million with a further £1 million earmarked for payment to the Inland Revenue.  Cash offers were made to some1800 employees by each Respondent.  Each was aware of the kind of offer being made by other local authorities in the North East.  Of those approximately 250 who issued proceedings following their signing of the COT3 out of the 1700 who signed COT3s are affected by the sample cases in the Redcar case; and up to 200 in the Stockton case.  All the sample cases in these proceedings are trade union members.

The legislation relating to settlements
13.	The legislation relevant to these cases allows parties to reach finality by way of contracts to settle either outstanding Employment Tribunal claims, or matters which could be taken to a Tribunal.  There are two routes with very different conditions.  If the Claimant is represented by a lawyer or a paid or unpaid adviser, a compromise contract or compromise agreement may be reached.  This is effective to compromise claims of a particular nature which must be identified in the contract.  It is rightly asserted by Mr Quinn that the regime applicable to compromise contracts is more rigorous in the conditions imposed for their validity than the regime which is available by the other route: a conciliation contract.  This is relevant to the seventh ground of appeal in the Redcar case where the difference between the regimes is described as enormous, inexplicable, and results in a failure to safeguard claimants.  We accept that the difference is significant.  We do not accept that it is inexplicable.  The two regimes were put in place by legislation separated by almost 20 years (1975, 1993) introduced by different governments and designed to achieve the same end by different means.  Nor do we accept that the Claimants’ interests are not safeguarded.  They are safeguarded in different ways and although it may be surprising that a lawyer acting for a Claimant is more closely regulated than a conciliation officer who is independent, that is the accepted consequence of the legislation.  A full account of the introduction and scope of compromise agreements is found in Lunt v Merseyside TEC [1999] ICR 17 EAT. We therefore say no more about compromise contracts which are not relevant to the appeals and dismiss ground 7 in the Redcar Notice of Appeal.

14.	Conciliation officers are designated by ACAS, a non-governmental statutory body, to discharge what we hold to be statutory functions by way of powers and duties.  It is common ground that there were such officers in both of these cases: Ms Fairfax in Redcar and Ms Parker in Stockton.  In both cases Mr Bill Moore acted as adviser but not as a conciliation officer designated for the purposes of effecting conciliation contracts.  The functions of an ACAS officer are performed on behalf of the Crown: Trade Union and Labour Relations Consolidation Act 1992 section 247(3).  Conciliation is not defined in any of the statutes which have been brought to our attention, but it is the process by which two parties to a dispute are reconciled in a settlement to which they voluntarily agree.  A conciliation officer is an officer designated by ACAS under section 211 of the 1992 Act (Employment Tribunals Act 1996 section 42(1)).   
“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].

15.	The general duty of ACAS is to promote the improvement of employment relations (section 209) and so the functions of any individual ACAS officer are discharged pursuant to that general duty, applying section 247(3).  

16.	In section 18 of the Employment Tribunals Act 1996, the Sex Discrimination Act 1975 and the Equal Pay Act 1970 are cited as statutes where conciliation may apply.  The relevant provisions are as follow:
“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”.

17.	The two subsections apply in different circumstances.  Section 18(2) applies when proceedings have been presented and a copy served on ACAS.  The duty is triggered when a request is made or, on his or her own initiative, the ACAS officer considers that there is a reasonable prospect of success of conciliation.  Section 18(3) applies when no claim has (yet) been made, but the ACAS officer has received a request.  The duty in both circumstances is to endeavour to promote a settlement without a Tribunal determination.  That approach has been strengthened by the Employment Rights (Dispute Resolution) Act 1998, the Employment Act 2002 and regulations made under it and the Employment Relations Act 2004, the combined effect of which is to encourage and to some extent require parties to settle individual workplace disputes between themselves or with the assistance of ACAS, without recourse to a Tribunal.

18.	That a duty is imposed by section 18 is clear from the language and also from the amendment introduced by section 18(2A) which provides in certain circumstances that ACAS officers may discharge their functions by way of a power and not a duty.  The provisions in section 18 substantially re-enact section 65 of the Sex Discrimination Act 1975, repealed by section 45 of the Employment Tribunals Act 1996.

19.	Section 77 of the Sex Discrimination Act 1975 protects an employee from contracting out of his or her rights under the Act.  The contracting out may occur when conciliation takes place under Section 18 of the Employment Tribunals Act 1996 or its predecessor, section 64 of the Sex Discrimination Act 1975.  Section 77 includes:
“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.”

20.	A question arises in the Redcar, but not the Stockton, cases as to whether there is any real difference between sections 77 and 18 in respect of what is required to be done by a conciliation officer and what was done in that case. 

The legal principles
21.	Mr Quinn, on behalf of the Redcar Claimants, submits that a valid conciliation contract was not effected because section 77 and section 18 apply in different circumstances and section 18 was not met.  Mr Cavanagh’s primary contention is that any involvement by an ACAS officer which meets the terms of section 77 will also meet the terms of section 18.  The tribunal in Redcar held that the correct approach was to consider section 18, but there was no practical difference in the application of the two provisions.  The Stockton tribunal also held that there was no practical difference but expressly held that section 77 was relevant and was met.  There is no appeal on this point in the Stockton case.

22.	In our judgment, Mr Cavanagh is correct in part.  Any ACAS officer providing assistance to parties will be endeavouring to promote a settlement and in endeavouring to promote a settlement, the ACAS officer provides assistance to the parties.  This is the primary submission also of Mr Clarke for ACAS. But they are wrong to stop there, for section 77 must be read with section 18.

23.	Where a claim has not (yet or ever) been presented to a Tribunal, the interaction of these two sections seems to us to be this: one or other of the parties knows that an ACAS officer may “make his services available”.  A request is made to do so.  The services include the duty to “endeavour to promote a settlement”.  Settlement can be achieved in a number of ways but if it is to satisfy the parties’ wish that there be finality so that the agreement is tribunal-proof, the settlement must be reduced into an agreement which takes the form of a contract. Where the parties make a contract which follows any attempt by an ACAS officer to promote the settlement, it is made with that officer’s assistance.  Not every attempt to promote a settlement, or every actual settlement, results in a conciliation contract but if it does, it is appropriate to describe it as having been made by the parties with the assistance of an ACAS officer.  It follows that in order to decide whether a contract meeting the conditions in section 77 has been concluded, reference has to be made to section 18 of the 1996 Act and section 211 of the 1992 Act.  Attention is then drawn to what the ACAS officer has done, and whether this corresponds to the functions which a conciliation officer is under a duty, alternatively has a power, to discharge.

24.	If we are wrong about the above, we would yet reject the submission made by Mr Quinn in the Redcar case that the provisions apply only where the ACAS officer is under a duty to act.  The practical purpose for which Mr Quinn takes this point is that if he is right, it enables him to advance arguments upon the construction of section 18 in respect of subsidiary matters such as when a person claims that action has been taken against her, and in respect of which proceedings could be brought by her.  The pathway to Mr Quinn’s successful submission would be via a construction of section 211 TULRCA of officers performing “the functions of conciliation officers under any enactment”.  

25.	In our judgment, this does not apply to an officer discharging only functions which constitute a duty under section 18.  The reference to “under any enactment” means “for the purposes of any enactment”, for otherwise the succeeding phrase would be unnecessary i.e. “relating to matters which are or could be the subject of proceedings before an Employment Tribunal”.  The purpose of that latter phrase is to distinguish matters which may be the subject of proceedings before a County Court from those before an Employment Tribunal.  It is noted that the preposition “under” appears also in Section 18(1)(a). It is also apt to construe “under” as meaning “pursuant to a power granted or a duty imposed by” any enactment.  We consider that the latter is the better construction, giving effect to very wide powers of intervention in order to achieve a settlement granted by Parliament to ACAS officers.  

26.	These enactments provide for a conciliation officer to discharge functions by virtue of duties and also powers.  Section 210 of the 1992 Act is an example.  So is section 18(2A) of the 1996 Act.  This provision is introduced by primary legislation – Employment Act 2002 section 24(2) which is itself an Act by its preamble “to amend the Employment Tribunals Act 1996; to make provision for the use of statutory procedures in relation to employment disputes…”.  We have heard no submissions as to the inappropriateness of construing a 1996 statute in the light of primary legislation in 2002 to amend it.  It is legitimate to do so. It is common ground that this latter statute makes specific reference to the “powers” of an ACAS officer.  Further, we have no doubt that an ACAS officer has, pursuant to authorities which we explore below, powers under section 210 TULRCA in relation to employment disputes, which were available in each of these cases.  It is thus possible to funnel down from the functions of an ACAS officer exercised pursuant to either a duty or a power a conciliation contract entered into pursuant to section 77 SDA.  

27.	Both Mr Cavanagh and Mr Clarke submit that the entry point for discussion of a conciliation officer’s function is s210 TULRCA.  We disagree.  It is true that a trade dispute is widely defined by section 218 TULRCA as a dispute between employers and workers and that ACAS officers have “functions” to encourage settlement of such a dispute; but this does not cross over to s211 where there is a specific recognition of the functions of a designated conciliation officer.  Here, the conciliation officer’s functions relate essentially to assisting settlement of disputes between individual workers and their employer. There may, as in these cases, be preliminary dealings on a collective basis with union representatives, but in the end, a conciliation contract can only be made by the individual worker. Accordingly, s210 of TULRCA has no bearing because it is about collective conciliation. For s211, the functions arise “under” any enactment.  A function may be ordained by a statue but it may be discharged by the exercise of either a duty or a power by such officer.  This is clear by expressing it as the duty of a conciliation officer to endeavour to promote a settlement by using very wide powers of diplomacy and discretion to achieve such an objective.   In those parts of the Sex Discrimination Act 1975 and the Equal Pay Act which may result in a claim before an Employment Tribunal, such functions are exercised only by the discharge of a duty or a power. 
 
28.	In our judgment, it is not sufficient to look solely at section 77.  This does not give an insight into the kind of assistance which it is the function of an ACAS officer to give.  It does not reveal the kind of disputes which she is to be involved in.  It does not disclose the duty which attaches to such an officer when assisting the parties to make a settlement under section 77, and which derives from section 18 now, and section 64 Sex Discrimination Act 1975 when originally enacted.  Since a contract made between the parties with the assistance of ACAS is by definition made pursuant to an endeavour by an ACAS officer to promote a settlement (the two are the same), in a disputed case over effective settlement the only question which arises is whether the gateway to such a settlement was properly opened.  

29.	Section 18 has not been amended to include the language of the 2004 Employment Tribunal Regulations which describe the initiation of proceedings in the Employment Tribunal as by way of a “claim”.  Nevertheless, section 18(1) applies to “claims which could be the subject of Employment Tribunal proceedings”.  Such a claim opens the possibility for an ACAS officer to intervene to promote a settlement.  Mr Cavanagh made comparisons with other anti-discrimination measures eg. Race Relations Act 1976 s 72(4)(a) and Disability Discrimination Act 1995 sch 3A para 2(1)(a), but they do not affect the combined wording of s 77 SDA and s 18 ETA. 

30.	The requirement that “a person claims an action has been taken in respect of which proceedings could be brought by him” describes one of the two categories of case in which ACAS intervention arises, the other being where a claim has actually been presented.  In the former case, ACAS officer intervention is predicated upon a request being made.  Mr Quinn accepts in the Redcar case (no issue on this arising in the Stockton case) that the Claimant herself need not make the claim that there has been a breach of the statute, nor the request to ACAS to intervene.  This concession is clearly correct.  Both can be done on a Claimant’s behalf.  When an act is done purportedly on behalf of a Claimant by a trade union officer who does not have authority, the Claimant can ratify the act and validate it, if she has full knowledge of the material circumstances or takes the risk whatever the circumstances; ratification can be express or by conduct Bowstead and Reynolds on Agency 17th Ed para 2-052, 2-067, 2-070.

31.	There is no specific form for such claim or request to be made.  Each can be done explicitly or implicitly.  

32.	It is common ground that if claims were made, they would fall under the provisions specified by s18 ETA i.e. sex discrimination and equal pay.  This also satisfies the second part of s18(3)(a) so that proceedings could be brought by her before a tribunal.  The first logical question is whether or not she “claims that action has been taken”.  A clear grant of authority by a person to another to make such a claim is apt to satisfy this section. Implied grant via the terms of membership of a trade union, would be sufficient.  In any event, union officers have general implied authority to act on behalf of all their members.  For the purposes of the Redcar case, it is necessary to say something more about the authority of a trade union to act for its members.  It was said in Heatons Transport (St Helens) Ltd v TGWU [1973] AC 15 HL 112G-H by Lord Wilberforce for the whole House:
“…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.’”

33.	All of the sample claimants in the two cases are trade union members, but we have been asked to consider the position of non-union members since there are some amongst the claimants.  According to the classic model, a trade union recognised by an employer for collective bargaining will negotiate terms and conditions which ultimately are applicable to union and non-union members alike within the scope of the collective agreement: see Clegg v The System of Industrial Relations in Great Britain [1970].  The way in which such changes take contractual effect is by a clause in the individual contract of employment of every employee indicating that his or her terms and conditions of employment are as found from time to time in a relevant collective agreement.  It is usually an express, or sometimes an implied, term that terms agreed through collective bargaining will be given effect in the individual contract of employment in so far as they are apt e.g. terms dealing with pay and hours.  In some versions of the model, express agreement is obtained by an individual to an offer made by the employer which takes the form of the pay and hours agreed by collective bargaining, or so agreed subject to express individual assent.  In either of these models, the employee gives authority to union officers to negotiate, and sometimes to agree on their behalf.  

34.	Where there is recognition of an independent trade union for the purposes of collective bargaining, people who are not members are generally bound by the terms of collective agreements, in so far as they are apt for individual incorporation, which expressly or impliedly form their terms and conditions of employment: NCB v NUM [1986] ICR 736.  A statutory statement of particulars under section 1 of the Employment Rights Act 1996 may confirm to any individual employee that this is the case.  An agreement for an increase in wages, (alternatively for a decrease in wages in exchange for job security) negotiated by trade union officers on behalf of a group of workers for which it has recognition for collective bargaining, will take effect so as to change those terms and conditions provided that such a clause exists expressly or impliedly in the individual contract of employment permitting this method.  This is the general practice of the system of employment relations in Great Britain.  Such a clause will usually be part of the terms and conditions of all employees, union member or not, and will have the above effect.  The system also discloses an equally common feature.  The union negotiates the best deal possible for the group of workers for which it is recognised, but acknowledges that specific acceptance is required before such terms take effect in any individual’s contract of employment.  This will invariably be the case where an employee is asked to give up rights to complain against her employer to an Employment Tribunal.  These models are still prevalent, particularly in the public sector.  

35.	As to the form of “claim” required by section 18 ETA, this can be express of course, or implied: Moore v Duport Furniture Products Ltd [1982] ICR 84HL at 95F, 95H-96A; Hennessy v Craigmyle & Co Ltd [1986] ICR 461 CA at 461D, 464D-E and 467D; Slack v Green (Plant Hire) Ltd [1983] ICR 617 EAT at 619C-D, 620C, 620E-F; BCCI v Ali [2001] ICR 337 HL referring to the judgment of the Court of Appeal at 2000 IRLR 398 para 42(x).

36.	If a claim has been made which satisfies section 18, the next question is whether the conciliation officer exercised any of her functions in order to effect a valid conciliation contract under s.77 SDA.  We accept the following principles advanced on behalf both of Redcar and ACAS.

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).

37.	In stating those principles, it also necessary to mention a passage in Hennessy [1986] ICR 461, 465B where Sir John Donaldson MR said this:
“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”. 

38.	We do not consider that the Court of Appeal was there suggesting that the ACAS officer should give advice on the merits of a proposed compromise.  The officer will doubtless advise the Claimant that signing a COT3 will preclude her from presenting a claim to an Employment Tribunal.  If, however, Sir John Donaldson MR was suggesting that the ACAS officer had a duty to advise the employee, we respectfully accept the submissions made by Mr Cavanagh, Mr Clarke and Mr Cape.  First, the nature of the advice of the ACAS officer was not an issue in the Hennessy case which concerned the definition of a “claim” and whether or not the Claimant was under duress.  Secondly, if this were an issue, the Court of Appeal ought to have been referred to Moore, a judgment of the House of Lords on this subject, and Slack, a recent judgment of the EAT which it would be necessary to overrule.  Thirdly, ACAS’s view of its duties and its practice since its foundation has been that its officers do not advise on the merits of a proposed settlement.  Nor do they give legal advice on the meaning of any form of words chosen.  Naturally, they may make a suggestion to the parties if the form of words chosen as an instrument for the settlement of a particular dispute completely misses the target.  Other than that, an ACAS officer’s advice, if given, is simply to the effect that the signing of a COT3 precludes the claimant from bringing proceedings in an Employment Tribunal on a subject within the scope of the words used in the COT3. The role of ACAS is fully and accurately set out to this effect on its excellent website www.acas.org. 

39.	A construction point arises in the COT3 contracts in each appeal. Depending on its terms, a contract can be made to settle any Employment Tribunal issue. For the Employment Appeal Tribunal, Judge Reid QC and members said this in Royal National Orthopaedic Hospital Trust Ltd v Howard [2002] IRLR 849 at paragraph 9:
“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”.

40.	It is obviously right to adopt a common sense approach to the construction of these documents based upon the intention and knowledge or presumed knowledge of the parties at the relevant time, following the rules of construction set out in Investors’ Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912-913 per Lord Hoffmann.
“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
41.	The local government elections in May 2003 resulted in an incoming coalition administration at Redcar determined to implement single status.  At once, Mr Colin Moore, the chief executive of Redcar, briefed the new cabinet and met unions.  On 27 July 2003 employees of Redcar began to lodge claims. By its Notice of Appearance, Redcar admitted breach.  Meanwhile Mr Moore had met ACAS officers, organised a training event and, in due course, 13 negotiating sessions took place between Redcar and the three recognised unions in the presence of ACAS officers.  Ms Fairfax, an ACAS officer designated for the purposes of conciliation under section 211 TULRCA attended on 6 January 2004.  Agreement was reached for the introduction of Green Book terms and conditions with effect from 1 April 2004 and for a sum to be made payable to all employees according to a compensation scheme based on length of service and hours of work.  The negotiations were conducted against a threat of job cuts.  On 13 January 2004, ACAS produced and distributed copies of an agreement which would become a COT3.  The terms of the COT3 were agreed between the unions and Redcar.  Ms Fairfax had direct input into the letter which accompanied the COT3 sent to all employees, for her suggestion as to the text was accepted by the unions and Redcar.  The collective agreement was signed on 29 January 2004.  Mr Colin Moore then conducted nine “road shows”.  These were the means by which Mr Moore had been accustomed to providing information to employees.  Convenient locations close to where numbers of employees work were chosen at which presentations were given.  ACAS did not attend these road shows, but a telephone hotline was set up which would be used by non-union members.  At around this time a large number of Redcar employees accepted payments in return for signed COT3 agreements.  A number of employees then lodged Tribunal claims.  In respect of the five sample Claimants, each presented a claim after receiving, and in some cases banking, cheques of between £3,000 and £6,200.  All did bank their cheques. New terms and conditions pursuant to the Green Book took effect on 1 April 2004.  

42.	An account of the issues relating to this litigation is given in Redcar & Cleveland Borough Council v Degnan [2005] IRLR 179 EAT (Mitting J and members) in which Redcar’s appeal against certain rulings by a Newcastle Employment Tribunal was upheld. In City of Newcastle-Upon-Tyne v Allen and Degnan v Redcar & Cleveland Borough Council [2005] IRLR 504 EAT, Burton P and members allowed an appeal by Newcastle City, and in part an appeal by certain claimants in the Redcar case, three of which were remitted to the Employment Tribunal. The claimants’ appeal from Mitting J’s judgment to the Court of Appeal was dismissed.  Maurice Kay LJ, giving the sole judgment of the Court of Appeal, described the appeal as “the tip of a litigation iceberg” [2005] IRLR 615 para 1. 

43.	The Tribunal in our Redcar case noted that “Mr Cross had launched the first of … a large number of … claims”.  His was the face that launched a thousand claims from the Tyne to the Humber and beyond to the Esk. In addition to equal pay, claims are pending based on sex discrimination in the way in which collective agreements were made, brought against local authorities, unions, individual Council and union officers and, at one stage, ACAS officers (see reasons para 4(iv)).  One set of claims brought by Mr Cross’s clients in this category was struck out and held to be unsustainable on appeal by, in turn, Elias P and HH Judge Richardson: Shepherd v North Yorkshire County Council [2006] IRLR 190 EAT. Meanwhile, some equal pay claims are proceding to a remedy, appeals by the employer having failed: South Tyneside Metropolitan Borough Council v Anderson UKEAT/0041/06 The Tribunal found it necessary to make some observations about Mr Cross which included the following
“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… ”

44.	The meaning of the last citation is that the unions and Redcar wished to see as much compensation being made available to the Claimants as the unions could negotiate and as the Council could afford, consistent with the constraints upon it and its duty to its charge payers, without dilution by lawyers’ fees, or tax if that could lawfully be achieved.  The publicity emanating from the unions and from Mr Cross can best be described as citric and tendentious.  The unions’ claim has not been disputed: if a client of Mr Cross took a claim to an Employment Tribunal, it would be defended, it would take years and after payment of Mr Cross’ contingency fee, his disbursements, VAT and the fact of taxation, she would need to receive a Tribunal award of £3,000 to match every £1,000 under Redcar’s COT3 offer.

45.	The findings made by the Tribunal on Mr Cross’ position were felt necessary and are important because they show that a very real opportunity was available to all of the Claimants to choose between accepting the offer negotiated by the unions or “to go with Mr Cross”.  Large numbers did both and became, as the Tribunal aptly put it, “an example of ‘having one’s cake and eating it’”.  

46.	The Tribunal considered the actions of the ACAS officer, the contents of the COT3 and accompanying material, the state of knowledge of the five sample Claimants and the legal principles, including those set out above.  It made criticisms of the ACAS officer, with which we respectfully agree, as to the way in which the matter could better have been handled.  It made criticisms of Mr Colin Moore and Redcar and, in particular, held it guilty of sharp practice in its attempted manipulation of the hearing dates to secure a better advantage in its offers.  Nevertheless, it decided to accept Redcar’s application to strike out the five sample claims on the ground that they were misconceived, for they had been the subject of valid COT3 conciliation conracts.  We will look in more detail at the findings when we consider each of the grounds of appeal.

The Redcar agreement
47.	The joint letter sent by Redcar to its manual grade employees was in standard form and was in the following terms:
“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”.

48.	The COT3 is on ACAS headed paper with an ACAS case reference and employee number. There is provision for it to be signed by the employee and the employer and dated. The terms provide as follows:
“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”.

49.	The Tribunal examined the circumstances in which each of the five sample Claimants signed the COT3 and rejected the contention that “they were unaware that they were giving up something by way of rights of to go to a Tribunal”, for that was made “abundantly clear” from the letter.  The Claimants had made an irrevocable choice to accept the offer, or to affirm its acceptance, when they knew through their solicitor, Mr Cross, of the Respondent’s sharp practice and banked the cheques.

Discussion and conclusion on the Redcar appeal
Construction of the documents and Redcar’s cross-appeal
50.	It is convenient to deal first with two points of construction, starting with the cross-appeal by Redcar against the Tribunal’s finding about the construction of the COT3 on what we call “the date point”.  No challenge is made by either party to the Tribunal’s finding that the joint letter is to be read with the COT3 (Reasons 14.3).  The Tribunal found that each COT3 was apt to settle the Claimant’s equal pay claim but only in respect of the period leading up to the date on which she signed.

51.	We have been told that it was common ground that the date of signing the COT3 did not affect the right of any claimant to bring proceedings in respect of the pay regime in place from 1 April 2004.  In fact, a substantial number of employees did not sign until after that date.  If Mr Quinn is correct in his support of the Employment Tribunal’s judgment on this issue, his clients would have signed away their right to bring proceedings in respect of any dispute about the new pay regime.  This can be done provided unequivocal terms are used: Royal National Orthopaedic Hospital Trust Ltd v Howard (para 39 above).  It is plain to us that the intention of the unions and Redcar was to achieve a change in terms and conditions with effect from 1 April 2004 and to make payments to the manual grades of employees to reflect Redcar’s admission that there was substance in the unions’ case on behalf of their members that there was inequality in the White Book regime from 1988.  We accept Mr Cavanagh’s submission that it was the joint intention to draw a line under the old regime and to start afresh in April 2004.  Earmarking of appropriate public funds to achieve this purpose had to be finite, based on a budget for the relevant financial years.  This could not be left to the fiscal uncertainty which would occur if each employee’s payment depended upon the date of her signing the COT3.  It was clearly quantified knowing of the change in conditions which would occur on 1 April 2004.  

52.	Further, the reference to the contract of employment, and to the terms of it, are references to the terms which existed when the COT3 offer was made and which it was anticipated would continue to be in place until 1 April 2004.  The contract was then changed and any complaint arising out of the new regime would be based on a new contract and would, pursuant to the common ground we have recorded above, not be precluded in the case of a claimant who signed the COT3 after the new regime came into effect.

53.	We reject Mr Quinn’s claim that there is ambiguity in this document.  Construed according to the rules in Investors’ Compensation Scheme (above) we hold, with respect, that the Tribunal erred in its approach.  A binding release was intended and was achieved in respect of each Claimant’s claim arising out of the contractual relationship in place until the change on 1 April 2004. Given that error of law, we are asked to substitute our judgment (and Mr Quinn does not suggest otherwise) over paragraph 1 of the Employment Tribunal judgment to provide the following:
“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”.

54.	The second point dealing with the construction of the COT3 arises in Ground 6 of the Notice of Appeal. It is contended that the Employment Tribunal erred in law in holding that “the wording of the COT3 excluded claims under the Equal Pay Act”. Reliance is placed on the evidence of the ACAS officer as to the intention not to exclude pension claims. Both these points are misconceived. As is clear from the approach of the Employment Tribunal to the date point above, the case was about equal pay. A claim under the Act is a claim in contract, as the claimants in this very litigation were told in April 2005:  City of Newcastle-Upon-Tyne v Allen and Degnan v Redcar & Cleveland Borough Council [2005] IRLR 504 EAT para 10. Mr Quinn’s whole case is that settlements to exclude equal pay claims were wrongly given effect so that his clients are shut out of their rights. The Employment Tribunal in its approach to the date point acted on the premise that claims were brought of breaches of the equality clause and an agreement for compensation to be awarded should be upheld up to the date of signing. The language of the COT3 alone is sufficient, and is reinforced by the terms of the joint letter.

55.	As to the contention that evidence of the ACAS officer was ignored, this falls under and offends the clear rules of construction set out by Lord Hoffman and relied on by Mr Quinn. It is not legitimate to examine in evidence the intention of a party, let alone an independent public servant acting as a designated conciliation officer. The scope of the exclusion of past claims under the contract of employment must be found in the COT3, the joint letter, the contract of employment and the equal pay jurisprudence. With our ruling, the Employment Tribunal has held the conciliation contract covers equal pay claims, now up to 1 April 2004. We see no reason to regard it as not covering unequal access to pensions, if that is what is envisaged by the ground of appeal. This ground is dismissed. 

Was a claim made or ratified?
56.	The first three grounds of the Claimants’ appeal are based upon the premise that some defect has occurred in the application of s18 to the facts here.  Redcar contends that these three grounds arise only if a conciliation officer’s functions are being discharged pursuant to whatever requirements are made by s18, and do not arise if the approach is limited to s77 SDA.  We have already decided that s18 is relevant and thus it is necessary to consider whether the appeal based upon defects in the combined impact of s77 and s18 is correct.  We bear in mind that each of these grounds challenges a finding of fact.  Although the first ground of appeal was amended at our hearing without objection, it maintains the premise that, for the purposes of s18 ETA, a claim could be made collectively by a trade union without the authorisation of each Claimant.  With respect, this premise is incorrect, for the Tribunal did not so decide.  The unions were at pains to point out that they were negotiating in order to obtain an offer, but it was for each Claimant to decide whether to accept the offer made by Redcar following negotiations on her behalf and to do so by signing the COT3.  
57.	The Tribunal decided that the Claimants gave authority to the unions to negotiate, that the unions did not have authority to enter into binding agreements following such negotiations, that authority to negotiate is very different from authority to enter into a binding agreement and that the extent of the authority given by the Claimants to the unions included the authority to make personal claims on their behalf which complied with s18 (Reasons para 12.10).  Further, by actually signing the COT3, each Claimant herself satisfied s18 (Reasons 12.10), alternatively ratified the actions of the union on her behalf. The Tribunal was satisfied that such authority existed through the terms and conditions of employment, coupled with, in a union member’s case, the contract of membership.  

58.	Once it is recognised that the Tribunal made findings differentiating between the power to negotiate and the power to enter into binding agreements, and it has to be said those findings are not challenged, the premise for an attack under the first ground of appeal based on the union’s alleged lack of authority to enter into binding agreements must fail.  

59.	So must the attack in the second ground of appeal based on the Tribunal’s finding that the unions had implied authority to take steps which conformed to presenting a claim under s18.  In any event, we reject the contention that the Tribunal made this judgment by failing to apply the three authorities we have cited above: Moore, Hennessy and Slack.  The Tribunal judgment cannot be faulted.  For, in Moore [1982] ICR 84 at 95F, 95H-96A it was held that a claim can be implied or inferred from acts of the employee and in that case no claim had been made in any realistic sense.  In Hennessy no claim had been made before ACAS was involved, nor had the employee even thought about making a claim: [1986] ICR 461, 461D.  A claim was inferred because he had signed a COT3: 464D-E, 467D.  Similarly in Slack, no claim was made before ACAS was involved nor did the claimant intend to make any claim of unfair dismissal: [1983] ICR 617, 619C-D, 62)C, 620E-F.  Further, in BCCI, no claim of any nature was made: [2000] IRLR 398 paragraph 42(x).  

60.	Mr Quinn asserts that the Tribunal’s alternative finding (that the Claimants accepted the offer by signing the COT3) deprived employees as a class of the protection of the legislation, for they were deprived of reflection time.  This assertion cannot survive the plain finding by the Tribunal as to what occurred in each Claimant’s case and the evidence of the signed record.  

61.	This leads to the third ground of appeal which is that no Claimant could ratify the union’s act by signing the COT3 when she was unaware of the history.  This, however, overlooks the acceptance by Mr Quinn that the COT3 is to be read with the joint letter (above).  It is plain that this discloses a history of the unions raising claims of discrimination in the pay systems of Redcar.  Having seen the publicity, whether acrimonious or uncontroversial, the Tribunal’s finding cannot be faulted that the Claimants ratified the actions of the union to put forward claims on their behalf and accepted offers which emanated from those claims when they signed the COT3.  The Tribunal’s finding of fact that “the Claimants were aware from their knowledge” cannot be disturbed.

The actions of the conciliation officer
62.	This ground challenges the finding by the Tribunal that the conciliation officer complied with her statutory duties pursuant to s18.  Before reaching that conclusion, the Tribunal made two firm criticisms of ACAS which are as follow:
“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”.

63.	That finding also emerged from the Tribunal’s discussion as to whether or not the ACAS officer had acted in bad faith.  Such an allegation was expressly eschewed by Counsel then acting on behalf of the Claimants.  There is no challenge to the finding that the ACAS officer remained impartial throughout the dispute.  Applying the principles we have cited, Mr Quinn’s assertion that the ACAS officer was 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 is plainly wrong.

64.	The Tribunal made detailed findings as to the actions taken by Ms Fairfax to which we draw attention, but need not recite:  Reasons 10.4 to 10.9, 13.3-13.6.  Upon those findings there is no support for the contention that Ms Fairfax failed in her duty under s18, or failed to carry out her functions which include duties and powers under the combined effect of s77 and s18.  While the criticisms of the ACAS officer (above) are powerful, and with respect we support them as indicating what best practice is for an ACAS officer, their inclusion in the Tribunal’s consideration demonstrates that it had in mind the standards required of an ACAS officer.  The Tribunal was in no doubt that notwithstanding its criticisms, Ms Fairfax reached the minimum standards required by law, while falling short of best ACAS practice.  This ground of appeal must be dismissed.

Sharp practice
65.	The Tribunal made a limited but powerful finding about the sharp practice of Redcar.  From early December 2003, there was an attempt by Redcar to delay the hearing of the first group of successful equal pay claimants due on 19 January 2004 where losses would be quantified.  The reason for this attempt was that Redcar believed that a Tribunal finding on this date would undermine the offer it was intending to make and which became the COT3s.  Both the terms of ground 5 in the Notice of Appeal, and its context, are important and provide simple answers to this point.  First, it is contended that the Tribunal “failed to consider the legal effect” of the sharp practice.  This is simply unsustainable given the Tribunal’s finding at paragraph 15.11 based upon “careful reflection” and an examination of the source of the term “sharp practice” in Lord Nicholls’ speech in BCCI (above) at paragraphs 32 and 33.  

66.	Secondly, the Tribunal decisively found that the Claimants were not misled as to their rights when they signed the COT3s.  That takes in the second limb of the criticism in ground 5 which is that ACAS officers were aware of the sharp practice when the COT3 offers were made.  The context is important.  We have cited the rejection by the Employment Tribunal of any allegation of bad faith or unfair methods by ACAS officers notwithstanding lesser complaints of a lesser nature were made on their behalf by Counsel previously instructed.  The ACAS officer’s action was held to be impartial.  We accept Mr Cavanagh’s submission that this ground of appeal essentially focuses upon the argument that it was unconscionable to hold each Claimant to the COT3 agreement.  But this is the subject of paragraph 3 of the executive part of its reserved judgment (cited at para 5 above) which was not appealed.  Each of the Claimants on the Tribunal’s findings had through Mr Cross presumed knowledge of the sharp practice prior to cashing the cheques.  This satisfies the principle that “receipt or retention of money with knowledge of the circumstances of a contract under which it is paid will normally constitute ratification of that contract”: Bowstead (above) paragraph 2-071.  The services of ACAS officers were not withdrawn until November 2004, long after the awards in the first group of cases heard in January 2004 were made public.  For all of the above reasons, and noting Mr Quinn’s engaging comment that this was not at the forefront of his appeal but would not be withdrawn, ground 5 is dismissed.  As he accepted, this ground is not sufficient on its own to cause the Employment Tribunal judgment to be set aside.

67.	It follows that we dismiss all grounds of appeal and allow the cross-appeal in Redcar and now travel to Stockton. 

The facts in the Stockton case
68.	Since there is no challenge to any finding of fact by the Tribunal on behalf of Stockton, we can broadly accept the description of the facts given by Mr Quinn.  In September 2003, in response to the lodging of a number of equal pay claims from current and former employees, a report was submitted by Stockton's Corporate Management Team to the Cabinet calling for Stockton to agree a strategy. In December 2003, Stockton decided to approve a strategy of defending the equal pay claims but also attempting to negotiate a settlement of potential claims and implementing the Single Status Agreement. On 6 January 2004 Stockton agreed and issued a Joint Statement with the unions - UNISON, GMB and T&GWU. This stated that Stockton and the unions were working together to resolve the issues and discouraged employees from instructing their own solicitors. Mrs Danks then led the negotiations on behalf of Stockton.  These led to agreement of a matrix which set out the number of years' service and weekly hours of the employees so as to calculate the offer of settlement to be made to them. The final settlement proposal was estimated to cost £2.9 million in 2004/5 and £700,000 in 2005/6. Stockton had made a comparison between the estimated awards which would be made by an Employment Tribunal should the employees have made a claim, and the matrix offer agreed with the trade unions. This document was not disclosed to the Claimants. The final agreement was at a level of approximately one third of the estimated Tribunal awards.

69.	On 22 April 2004 Stockton and the unions agreed a time scale. This provided for road shows which took place on 10 and 21 May 2004 at which employees would be invited to take advice from ACAS officers and trade union representatives and raise any queries with Stockton. Stockton then held meetings with ACAS and agreed a process whereby all employees would be sent a letter from ACAS in an individual envelope.  All trade union members were sent a joint letter from their unions. In addition Stockton itself wrote to trade union members and to non- trade union members, enclosing to union members an ACAS COT3 with payment details, the payment matrix and a road show newsletter, and to non-members a copy of an ACAS COT3 (with no payment details), the payment matrix and the road show newsletter.  

70.	On the morning of the first roadshow, one of the ACAS officers, Mrs Parker, 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 raised this with Ms McGuire and (we hold) the unions. A decision was made to proceed with the road show and the COT3s

71.	Of the six Claimants who gave evidence, the Tribunal found that Ms Aithwaite had been unable to speak to any Council officers or ACAS officers, Ms Black could not remember seeing ACAS, Ms Carr did speak to someone who described himself as being independent but did not understand what he said, Ms Cross did not know what ACAS was, Ms Hendry did not speak to ACAS and Ms Plummer was not sure whether ACAS was there or not.

72.	The Tribunal concluded that those Claimants who entered into COT3 agreements  are precluded from making complaints of equal pay as they entered “valid compromise agreements pursuant to the Sex Discrimination Act 1975 section 77(3)(a)”. That finding was made notwithstanding the following critical findings in para 110.  
“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.’"

73.	The sums we have specified above were made available to the employees.  It is common ground that Stockton made its offer knowing that if each offer was accepted, the total expenditure would be one-third of its total exposure should it be required  to meet the claims in full.  This arithmetic reflects the unions’ claims in Redcar about the value of these cases if handled by a solicitor:  see paragraph 45 above.  

The Stockton agreement
74.	The COT3 used in Stockton provides as follows:
“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.”

75.	It was accompanied by a letter from Stockton in standard form as follows:
“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”.

76.	In addition, a letter was sent signed by representatives of the three trade unions setting out the background and including the following:
“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”.  

77.	Accompanying the COT3 was a letter on ACAS headed notepaper which provides as follows:
“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.” 

78.	In so far as there are differences in wording as between union and non-union members, and as between those clients of Mr Cross who had issued Employment Tribunal proceedings prior to 
the offer of the COT3, no construction point arises.

Discussions and conclusions on the Stockton appeal
79.	In the following discussion, it should be borne in mind that the Stockton Tribunal held that there was no difference between the practical effect of s77 SDA and s18 ETA in the treatment of an ACAS officer’s functions.  The Tribunal recorded Mr Cape’s submissions which specifically linked the two sections and Mr Quinn’s acceptance of that statutory framework as described by Mr Cape.  For the reasons we gave in the Redcar appeal, we would need to be convinced by powerful arguments from ACAS that it was open to us to interfere with this judgment.  In so far as they are repeated by Mr Clarke in relation to the Stockton appeal, they are rejected for the reasons we gave in the Redcar appeal.  It should also be borne in mind that the discussion in the Redcar appeal of whether a “claim” had been made for the purposes of s18, together with the authority of the trade unions concerned, does not arise.  

Construction of the COT3
80.	The Tribunal held that there was a defect in the COT3 for it decided as follows:
“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].

81.	The way in which this “defect” arose was described by the Tribunal in more detail:
“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.

82.	We turn to the first submission.  This is based on an extract from Mr Quinn’s notes of cross-examination of Ms Parker, the ACAS officer as to her understanding of the “defect” in the COT3 draft.  The extract is not the subject of dispute by Mr Cape.  Prior to rejecting the submission for the same reasons as we rejected his similar submission in Redcar, it is necessary to note that a misconception arises as a result of this evidence.  Mr Quinn asserts that it shows that the ACAS officer drew it to the attention of a Stockton officer.  But when we pointed out to Mr Cape that the note actually records that she raised it also with the trade union side and that an understanding was reached by the unions and Stockton “that it was in the spirit of the subject matter which was equal pay”, he changed his approach and readily adopted that as indicating agreement by both sides notwithstanding the concern expressed by the ACAS officer.  Thus, the Claimants are fixed with the knowledge of their trade union officers who, as the Tribunal found, agreed the form of words of the COT3.  

83.	We would have rejected this point also on the application of the rules of construction which Mr Quinn again relied upon from Lord Hoffman’s speech in Investors’ Compensation Scheme (above).  Under Lord Hoffman’s third rule, it is not legitimate to adduce, or to rely upon, evidence of an ACAS officer, or even in Mr Quinn’s original formulation, the intention subjectively expressed of one of the parties to a contract prior to its signing.

84.	The central submission made by Mr Quinn for setting aside this COT3 is that it was effected following intervention by ACAS which was not impartial.  But since he did not ultimately challenge the plain meaning of the notes of evidence, and the straightforward finding that the COT 3 was agreed by the unions and Stockton, the allegation of one-sidedness against the ACAS officer must fail and it is dismissed.  

85.	The next issue concerns the construction of the COT3 itself.  This is ground five of the Notice of Appeal.  It is that clause (ii) is too wide; alternatively too vague to be enforceable.  It is common ground in this case that the principles of contractual construction apply.  This means that the contract can be set aside only on established principles such as vagueness or duress.  Mr Clarke, whose submissions on this point we accept, contends not only is it impermissible to consider the subjective intention of one party, but also it is illegitimate to set aside a contract on a basis which does not conform to the principles of the law of contract.  This is supported by Mr Cape.  

86.	It is common ground that clause (ii) does go further than Stockton intended and, indeed, further than the joint intention of the parties which was confined to settlement of the sex discrimination and equal pay disputes.  Evidence of Stockton’s intention might be relevant if, in another case, Stockton sought to use clause (ii) to defend a claim brought on a ground not contained within clause (i).  Indeed, as said in open Court, that was not its intention.  But does the inclusion of clause (ii) invalidate what is otherwise the clear and unambiguous effect in clause (i)?

87.	This is not the construction of restrictive covenant in a contract of employment, so it is not permissible to strike down the whole of the COT3 on the ground that one part of it is defective, or that clause (ii) is unreasonably wide.  If clause (i) is apt to exclude claims relevant in this appeal, the fact that other claims are excluded by clause (ii) should not affect the potency of clause (i).  The ACAS officer acted responsibly in pointing this out to the parties’ representatives but they nevertheless went ahead and agreed to its inclusion.  We agree with Mr Cape that the correct answer is that an enforceable bargain was made in clause (i) which is apt to cover the circumstances of the present case, and then we should go on to consider whether the statutory requirements i.e. in s77 and s18 are met.

88.	Further, we accept Mr Cape’s submission that the construction point was not raised before the Employment Tribunal. It is only in an exceptional case that such a point may be taken by a represented party on appeal to the EAT: see a review of the authorities I gave in Leicestershire County Council v Unison [2005] ICR 920 EAT, and the judgment of the Court of Appeal in Khan v Royal Mail plc [2006] EWCA Civ2 para 16 per Mummery LJ.  In the interests of finality of litigation, we would not have allowed this point to be taken but since we have heard full argument on it, and since we consider it is wholly unsustainable, we have no difficulty in dismissing it.  Neither clause (i) nor clause (ii) is vague.  It might be said that clause (i) is not needed if clause (ii) stands.  It might also be said that since clause (ii) achieved more for the Respondent than it sought, it should not be enforced, but there is no contractual reason for refusing to give clause (i) its full effect in these appeals, as the Tribunal did, subject to the statutory requirement.  Grounds 1 and 5 of the Notice of Appeal are dismissed.  

The role of ACAS officers
89.	Having considered the function of ACAS officers according to the authorities we have cited above, the Employment Tribunal in the Stockton case held that Ms Parker had done sufficient, pursuant to s18 to make the COT3 effective under s77 as a valid release.  This finding is attacked on the ground that since the Claimants did not receive independent advice and assistance, the Tribunal erred in law.  We have expressed our view upon the authorities which describe the requirements for the purposes of s77 of an ACAS officer.  We accept the criticisms made by the Employment Tribunal of the ACAS officer here.  It is plain from notes of her own description of best practice given to the Employment Tribunal that she did not follow it.
"(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."

90.	It is appropriate to look at what ACAS officers did.  It is accepted by Mr Quinn that Mr Bill Moore of ACAS attended negotiating sessions between Stockton and the unions in 2004.  ACAS was involved in setting up the road shows and sending out letters.  The purpose of the road shows was to provide the opportunity for employees to ask questions and receive information as well as sign the COT3 agreements.  The road shows were popular. Although ACAS officers envisaged a wider role for themselves at road shows, the evidence of the sample Claimants fell short of this.  There is, of course, no challenge by Stockton as to these findings.  Nevertheless, the finding by the Tribunal on this is as follows:
“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”.

91.	In our judgment, the action of the ACAS officer may have fallen short of best practice, but on the findings of the Tribunal, she discharged the functions necessary to effect a valid conciliation contract under s77 SDA, by reference to s18 ETA.  We reject the contention (ground 3 of the Notice of Appeal) that the approach of the Tribunal in the paragraphs we have cited indicates an impermissible subjective test.  What the ACAS officer did has to be judged against the standards of the statutes and, as we have held, the Tribunal has provided the material upon which it based its judgment that she discharged her functions.  

92.	It also considered the risk of litigation which is argued to be an impermissible factor.  The mention of the risk of litigation occurs in the context of an allegation that Stockton was in possession of more information than the Claimants about the worth of the claims.  But this is simply a reflection of the statement made on behalf of the unions about what would be recoverable if the claims were taken privately to an Employment Tribunal.  The principle upon which this (ground 4) of the Notice of Appeal argument is made appears to be that if one party does not disclose its calculations to the other party to a contract, the contract is void.  We do not accept that as a principle, and certainly not a principle applicable in the instant case where the unions were fully aware of the potential of claims they were seeking to settle.It is obvious that the Claimants were accepting a compromise knowing “the risk that they may not recover anything and that they would have to pay costs if they were represented privately”.  Since that was a relevant factor, the Tribunal cannot be criticised for taking account of it.  

93.	In those circumstances, all grounds in the Stockton Notice of Appeal are dismissed.  

Conclusion
94.	We would very much like to thank all four Counsel for their considerable help in producing their written and oral submissions.  The Redcar and Stockton appeals are dismissed.  The Redcar cross-appeal is allowed.