THE INDUSTRIAL TRIBUNALS

CASE REF:	525/05

APPLICANT:		Department for Employment and Learning

RESPONDENT:		Patrick Duncan

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the prohibition order is void and this tribunal has no power to entertain an application to make it operational.

Constitution of Tribunal:
Vice President (sitting alone):	Mrs P Smyth

Appearances:
The applicant was represented by Mr A Sands, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.
The respondent was represented by Mr M Watters.

The issue

1.	The issue to be determined is:-

“Whether a decision of the tribunal granting a prohibition order but staying its effect is capable of being put into operation by another tribunal.”

The background to the pre-hearing review

2.	On 8 March 2005 the applicant applied for a prohibition order to prohibit the respondent from carrying on, or being concerned with the carrying on of, an employment agency or employment business.  The application was brought pursuant to Article 5A of The Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (‘the Order’).

3.	On 10 January 2006 the tribunal issued a decision in the following terms:-

“The unanimous decision of the tribunal is that a prohibition order is granted to the claimant but stayed for a period of four years on terms which are set out at the end of this decision.”

4.	At Paragraph 23 of its decision the tribunal stated:-

“The Department sought a prohibition order from this tribunal.  It is only because we find as a fact that the first-named respondent has genuinely tried to help young actors in Northern Ireland and because he is one of few agencies in Northern Ireland to help the acting profession that we are not going to make a prohibition order take effect immediately.  However, under Article 5A(2) we are going to stay it for a period of four years.  If any breaches occur during this time, the Department can apply to an Industrial Tribunal to make the order operational.”

5.	At Paragraph 24 of the decision, the tribunal set out certain conditions with which the respondent was obliged to comply including a requirement that the respondent sign a statement in the following terms within one month of the date of the decision:-

“I confirm that I, Patrick Duncan, Dealers NI Ltd, Dealers Agency, and any other employment agency or business over which I have executive control will act in accordance with the Conduct of Employment Agencies and Employment Businesses Regulations (Northern Ireland) 2005.  I am aware that failure to comply with these Regulations or any other legislation regulating the conduct of my agency or business will result in the commencement of legal action by the Department of [sic] Employment and Learning against me with the risk that I will be prohibited from operating an employment agency or business for up to four years.”
[Emphasis added]

6.	By letter dated 1 February 2006 the Department’s representative, Mr Butler, sought clarification of the decision.  Mr Butler stated:-

“(1)	The Department for Employment and Learning is still unclear as to the precise import of the tribunal’s decision of the 10th January 2006.  The Department seeks clarification as set out –

“Our understanding of Paragraph 23 is that a prohibition order was granted but stayed for a period of four years, and that if any breaches of the legislation or tribunal conditions occur during the four year period, the Department can apply to the tribunal to make the order operational.

In the event of further breaches during the four year period we would be grateful for clarification as to whether the tribunal would then consider:-

•	a full ten year prohibition order;

•	a four year prohibition order;

•	a prohibition order to cover the remaining period of the four year stay, depending on the date it was granted.”

In addition, at Paragraph 24(7), does the tribunal intend this compliance statement to have effect indefinitely or just for the four year stay period?  Furthermore, does the statement restrict the effect of any prohibition order that may be granted during the stay period to a maximum of four years? … .”

7.	By letter dated ‘February 2006’ a clerk of the tribunals wrote to Mr Butler in the following terms:-

“ … Paragraph 23 of the decision states that the prohibition order is stayed for four years on conditions.  If any of these conditions are breached the Department can re-apply to the tribunal to consider the implementation of the prohibition order at that time.

I trust this explains the situation … .”

8.	On 9 November 2007 the Department made an application to make the prohibition order operational for the maximum period of ten years on the grounds that since the decision, further complaints had been received in relation to the respondent’s conduct and the Department contended that he is still unsuitable to carry on or be concerned with the carrying on of any employment agency or employment business.

9.	The respondent sought a pre-hearing review on the grounds that the prohibition order was void and could not therefore lawfully be put into operation by a tribunal.  He contended that the prohibition order did not comply with the procedural requirements set out in the 1981 Order.

The law

10.	Article 5A(1) of the 1981 Order provides:-

“(1)	On application by the Department an industrial tribunal may by order prohibit a person from carrying on, or being concerned with the carrying on of –

(a)	any employment agency or employment business; or

(b)	any specified description of employment agency or employment business.

(2)	An order under Paragraph (1) (in this order referred to as ‘a prohibition order’) may either prohibit a person from engaging in an activity altogether or prohibit him from doing so otherwise than in accordance with specified conditions.

(3)	A prohibition order shall be made for a period beginning with the date of the order and ending –

(a)	on a specified date; or

(b)	on the happening of a specified event;

			in either case, not more than ten years later.”

The submissions of the parties

11.	The respondent’s submissions

Mr Watters made both written and oral submissions.  He submitted that the prohibition order made by the tribunal in January 2006 was void for two reasons.  Firstly, because the tribunal failed to identify an end date for the order in breach of Article 5A(3) and secondly, because the tribunal had no power to stay the order.

Mr Watters submitted that the procedural requirements set out in Article 5A(3) are mandatory.  He referred to Paragraph 6.1.1 of Fordham’s Judicial Review Handbook as authority for the proposition that “A public body can only do that which it is authorized to do by positive law”.  (R  v  Richmond London Borough Council, exp Watson [2001] QB 370.)

The applicant’s submissions

12.	Mr Sands also made written and oral submissions.  He conceded that Article 5A(3) is mandatory, however he contended that the order does comply with the procedural requirements because it can be construed from the decision that the tribunal intended the prohibition order to last for a four year period, as well as being stayed for four years, and therefore there is an ‘end date’.  Mr Sands also submitted that the order commenced on the date the decision was issued, albeit that its operation was stayed.  Mr Sands submitted that although the tribunal does not have any express power to stay the operation of a prohibition order, the concept of staying an Order is well-known and understood in legal jurisdictions, and in any event the stay operated for the benefit of the respondent.  Mr Sands accepted, however, that in other legal jurisdictions the power to stay a sentence is expressly stated in legislation, rather than pursuant to an implied legal power.

13.	Mr Sands submitted that if the tribunal found that the prohibition order was not valid, the tribunal has power to correct the error, by hearing the evidence and setting a fixed period for the prohibition order to take effect.  However, he was unable to refer me to any legal authority which would enable me to correct an otherwise void order made by another tribunal.

14.	Finally, Mr Sands pointed out that there was an important public interest involved in enforcing this legislation and the Department is exercising an important public function in bring the application.

The tribunal’s conclusions

15.	There is no doubt that there is a public interest in ensuring that persons engaged in carrying on business as an employment agency are suitable persons, and that the Department is exercising an important public function in bringing an application for a prohibition order in appropriate circumstances.  There is also no doubt that an order which may prohibit a person from carrying on a business in which he earns his livelihood for a period of up to ten years is a draconian measure, and the tribunal must ensure that legal requirements are strictly observed before such an order may be made.

16.	This tribunal has carefully considered Paragraph 23 and Paragraph 24 of the tribunal’s decision which sets out the conditions which the tribunal imposed on the respondent, along with the correspondence between the Department and the Office of the Tribunals after the decision was issued.

17.	In my view, Paragraph 23 states clearly that the prohibition order was stayed for a period of four years.  However, it is entirely silent as to the length of the prohibition order which the tribunal was purporting to make.

18.	It is also clear to me from Condition 7 of Paragraph 24 that in the event of further breaches of the Regulations, the respondent would be prohibited from operating an employment agency or business for ‘up to four years’.  The tribunal did not therefore specify the length of the prohibition order, but merely the maximum length which ought to be considered by a subsequent tribunal.  I therefore conclude that the tribunal did not comply with the mandatory requirement of Article 5A(3) to specify the date the prohibition order would end.

19.	I am also satisfied that the tribunal had no power to stay a prohibition order albeit that such a course was to the benefit of the respondent.  In such circumstances, this tribunal has no power to make the prohibition order operational.

20.	I therefore dismiss the application.  However, nothing in this decision should be construed as preventing the Department from using fresh proceedings for a prohibition order, if it considers it appropriate to do so.

Vice President:

Date and place of hearing:	10 April 2008, Belfast

Date decision recorded in register and issued to parties: