Appeal No.	 EAT/1305/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
									    On 27 November 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
LORD GLADWIN OF CLEE CBE JP
MISS A MACKIE OBE

MR G MURRAY IN THE MATTER OF 
A WITNESS ORDER AND MR M KUMAR	APPELLANT

TARMAC ROADSTONE (SOUTHERN) LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G MURRAY
(In person)
20 Spencer Road
Acton
London
W3 6DW	
For the Respondents	MR D TATTON-BROWN
(of Counsel)
Messrs Wragge & Co
Solicitors
55 Colmore Row
Birmingham
B3 2SA	

	MR JUSTICE MORISON (P)   This is an unusual appeal.  It is an appeal by Mr Murray, who is an Employment Consultant, against a decision of an Industrial Tribunal who refused to set aside a Witness Order which had been made against him in connection with proceedings being brought by a Mr Kumar against Tarmac Roadstone (Southern) Ltd.

	The grounds on which this application is made is that the learned Chairman misdirected himself in refusing to set aside the Witness Order, and that his decision was so unreasonable that we should set it aside on that ground too.  

	The brief background to this appeal is that Mr Kumar presented a complaint to an Industrial Tribunal alleging that Tarmac had unfairly dismissed him.  As is customary, the services of ACAS were involved.  They were notified of the making of the complaint and carried out their statutory duty to consider whether a satisfactory settlement could be brokered between the parties.  

	Prior to their involvement, Mr Kumar had engaged the services of Mr Murray, who is a professional Employment Consultant, offering to clients, who pay for his services, all the facilities normally offered by a legally qualified representative; that is, he will, when asked, write letters before action; present written complaints on behalf of the individual, notifying the other party that he is the representative; prepare the case for a hearing and represent the Applicant or Respondent, as the case might be, at the Tribunal.  In this case, he was approached after the IT1 had been lodged, but before the involvement of ACAS.

	It is Tarmac’s case that as a result of an agreement made orally through ACAS, Mr Kumar’s complaint has been compromised in circumstances such that he is not in a position to continue to maintain it.  As a result, the Tribunal embarked on an enquiry in the summer of this year as to whether any such compromise agreement had been made.

	It was thought that Mr Murray would be a material witness on that issue.  He indicated from the outset that if his evidence was required it must be through a Witness Order, because he would not voluntarily, without such an order, be prepared to give evidence as to what took place between himself and his client, or as to what he was doing on behalf of his client.  Such a Witness Order was made.  He was available for the first hearing but not required because the matter was adjourned.

	The date fixed for the resumption of the hearing is this coming Friday.  When he was informed of the new hearing date Mr Murray notified the Tribunal Chairman that he had professional commitments to other clients in Glasgow for the Thursday and Friday and therefore, respectfully asked if he could be released from the Witness Order.  It was against that refusal that this appeal has been brought.

	It seems to us, on analyis, that the evidence of Mr Murray will not be of any assistance to the Industrial Tribunal.  We say that because it seems to us that he manifestly had ostensible authority to make any binding agreement on behalf of his client such that, if any agreement was made with him on Mr Kumar’s behalf, Mr Kumar will be bound by it whether or not Mr Kumar had actually given Mr Murray authority.

	This is an important principle because litigation could not successfully be managed if enquiries had to be made of representatives, whether they be Solicitors, Barristers acting for the Free Representation Unit, or Employment Consultants, to ascertain whether they had actual authority.  The whole purpose of having a representative is that he is authorised to, and held out as being authorised, to enter into arrangements for the proper management of the case, including the settlement of it.

	It has been made quite plain by Mr Murray that he would not wish to assert that anything that he did was without his client’s authority, nor would he wish to challenge what any ACAS official was to say by way of evidence, as to his involvement in the settlement discussions.

	Accordingly, it seems to us that this was not a case where Mr Murray was able to give any evidence which would be of assistance to the Industrial Tribunal.  We do not criticise them for making the order in the first place, partly because that was at the request of Mr Murray himself, but also because it appears to us that the issue as to authority has never been canvassed before the Industrial Tribunal, who therefore have not had the benefit of the argument which Mr Murray himself was raising before us this morning.

	It seems to us, having analysed the position, that in the circumstances which I have outlined, there is no need for Mr Murray’s evidence.  If any agreement was made with him, Mr Kumar is bound by it, although if Mr Kumar says subsequently that he gave no actual authority to Mr Murray, that will be a dispute which will have to be sorted out in a different tribunal; that is the County Court or some other Civil Court.

	But secondly, we would also say respectfully that we think that the Industrial Tribunal Chairman should have accorded to a witness in the position of Mr Murray, greater flexibility over his attendance at the forthcoming hearing.  There are occasions in which professional and semi-professional witnesses find themselves in great difficulties.  Tribunals depend on the co-operation of the public and witnesses to assist them in their difficult task.  It seems to us that according Mr Murray a reasonable degree of latitude would have, and should have, led the Industrial Tribunal to take the view that if his evidence was required, it could not reasonably have been demanded of him on a day which he had already pre-arranged for another Industrial Tribunal hearing.  The effect of holding him to this appointment would, of course, have been to disrupt the hearing of the case in Glasgow on that day.

	It seems to us, in those circumstances, that the Industrial Tribunal Chairman may have erred in the exercise of his discretion as to whether to discharge or release Mr Murray from the Witness Order and on that ground too, we think that the appropriate order is to allow Mr Murray’s appeal.

	As we see it at the moment, there can be no question of Mr Murray’s evidence being required at a later date once the position on authority is fully understood and in those circumstances, we hope that the case can proceed on Friday in Mr Murray’s absence in a way which will produce a satisfactory outcome.