McWilliam & Ors v Glasgow City Council

For a compromise agreement to settle an equality complaint, the complaint need not have been presented to an employment tribunal or articulated before the agreement. It must, however, be sufficiently identified in the agreement and must not amount to a blanket waiver of possible claims.

The statutory advice requirement concerns the terms and effect of the agreement, including its effect on the employee’s ability to bring proceedings. It does not require advice on whether the settlement is financially advantageous or should be accepted. Advice given in a group presentation may form part of the required advice where it is adopted and incorporated into subsequent individual advice. Whether an adviser is acting for the other party is a fact-sensitive question.

The claimants brought equal pay claims after signing compromise agreements with Glasgow City Council in November 2005. The Employment Tribunal held that the agreements satisfied the conditions in section 77(4A) of the Sex Discrimination Act 1975 and excluded claims up to 20 December 2005.

The agreements were made following group presentations by solicitors and individual meetings at which the claimants received advice and signed the agreements. The appeal concerned whether the agreements related to a particular complaint, whether the claimants had received the required advice, and whether the solicitors were acting for the Council.

1. Appeal dismissed. The compromise agreements were valid and satisfied section 77(4A) of the Sex Discrimination Act 1975.
2. The requirement that an agreement relate to a particular complaint is concerned with specification, not timing. No prior tribunal claim, grievance or prior articulation of the complaint is required. The parties must know which particular complaint is being compromised, and the agreement must not operate as a blanket waiver of all possible claims. The complaint may be identified by the employer. This approach was consistent with Lunt v Merseyside TEC and the policy favouring early settlement.
3. The required advice is advice on the terms and effect of the proposed agreement, particularly its effect on the employee’s ability to pursue the complaint before a tribunal. Section 77 does not require an adviser to assess the value of the claim or advise whether the settlement is a good deal.
4. The group presentations formed part of the advice given by the identified individual solicitors. The presentations had been prepared by the solicitors, were referred to in the individual meetings, and the claimants received copies of the slides. The Employment Tribunal was entitled to treat the communications as a single course of advice and was not required to dissect the presentation from the individual meetings.
5. Whether solicitors were acting in the matter for the employer was a question of fact and degree. The findings showed that they acted for the employees, negotiated changes favourable to them, maintained confidentiality, received the same fees irrespective of settlement, and were kept independent from the Council. The restricted scope of advice resulted from the information available and did not establish that the solicitors acted for the Council.
6. The cross-appeal was also dismissed, although it was unnecessary in light of the conclusion on incorporation of the group advice.

• Employment Appeal Tribunal: dismissed the appeal and cross-appeal from the Employment Tribunal’s judgment registered on 12 May 2010.
• Employment Tribunal: held that the compromise contracts satisfied section 77(4A) of the Sex Discrimination Act 1975 and that it had no jurisdiction over the claims up to and including 20 December 2005.