Appeal No.	EAT/1143/99/RN  			EAT/215/02/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 December 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MR G LEWIS

MR S HAYDOCK	APPELLANT

G D COCKER & SONS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS D ROMNEY
(of Counsel)

For the Respondent	MR T LINDEN
(of Counsel)
Instructed by:
Engineering Employers Federation
Broadway House
Tothill Street
London SW1H 9NQ

HIS HONOUR JUDGE PETER CLARK

1	This is now an old case.  Mr Haydock, the Applicant, presented his Originating Application to the Manchester Regional Office of Employment Tribunals on 14 December 1998.  His two combined appeals now come on for final hearing before us today, 18 December 2002.  What has been happening during the past four years?

The Employment Tribunal proceedings
2	By his Originating Application the Applicant complained of constructive dismissal and action short of dismissal  on health and safety grounds (Employment Rights Act 1996 section 44) against his then employer, the Respondent, G D Cocker & Son Ltd.  His employment had commenced on 24 April 1995; he described himself as a machine operator, first aider.  At box 9 of the Application he indicated that he would be resigning his position in the New Year.  

3	The claim was resisted.  By their Notice of Appearance lodged on 12 January 1999, 
together with grounds for resistance dated 13 January, they denied breach of contract entitling the Applicant to treat himself as dismissed, or that he was subjected to a detriment contrary to section 44 ERA.  

4	The matter was listed for substantive hearing, initially on 12 March 1999, later moved to 23 April.  The Applicant, then conducting his case in person, wrote an undated letter to the Tribunal, received on 4 February.  Addressed to the Regional Secretary it said this:

“I would like to request a witness order compelling the attendance of Mr G Adshead (Works Manager) and Mr A Philpott (Asst Manager), both of G D Cocker and Sons. To attend my tribunal date 12th March.  Case No 2405918/1998.”
The Tribunal Secretary responded on 10 February in these terms:
“Thank you for your letter which we received on 4 February 1999.
Before a Chairman could consider granting a witness order, we need to know whether the witnesses have been asked to attend on a voluntary basis and have refused or failed to answer, the evidence which they shall give and their address so that the order can be served on them.”

5	By a letter received from the Applicant by the Tribunal on 16 February, he stated that both witnesses had failed to respond:
“therefore I have to ask for a witness order as I feel they could both answer vital questions relevant to the Tribunal”
.
On 18 February the Tribunal Secretariat wrote:
“Your letter of 16 February 1999 has been referred to a Chairman of the Tribunals, who directs me to reply that your renewed request for Witness Orders is refused as, despite our letter to you dated 10 February, you have still failed to inform us of (a) what evidence each of these witnesses is expected to give, and (b) why that evidence (in each case) is necessary for a full and fair hearing of your claim.”

6	The Applicant’s reply, date stamped 23 February set out his reasons for the Witness Orders sought.  We need not rehearse those relating to Mr Adshead, the Factory Manager, since he was in the event called to give evidence on behalf of the Respondent at the hearing held on 23 April 1999 and is no longer relevant for the purpose of these appeals.  As to the second potential witness, Mr Philpott, the Applicant said this:
“Mr A Philpott is the assistant factory manager and knows that I reasonably made attempts at all levels to get certain matters dealt with agreeably prior to my enforced resignation.  I also strongly feel that Mr A Philpott will give the honest answers to the tribunal, to questions I feel must be answered.”

7	That letter was considered by a Chairman.  On 24 February the Secretariat replied:
“Thank you for your letter which we received on 23 February 1999.
This letter was referred to a Chairman of the Employment Tribunals who has directed me to reply that your request for Witness Orders has been refused on the basis that you may wish to call these witnesses solely in order to cross-examine them, which you would not be allowed to do if they were called to give evidence on your behalf.  It may, of course, be that the Respondent will wish to call either or both of these witnesses, on its behalf, in which case you will be able to put to them any relevant questions you wish to ask.”
We shall refer to the Tribunal’s letters of 18 and 24 February as “the February Orders”.  
8	At the substantive hearing held on 23 April, before a Tribunal at Manchester chaired by Mr G R Little the Applicant did not renew his application for Witness Orders,  although he 
raised the matter in his closing submissions. Consequently Mr Philpott did not give evidence before the Tribunal; Mr Adshead was one of the witnesses called by the Respondent.  The applicant alone gave evidence on his own behalf.  

9	His complaints were dismissed by the Tribunal.  Their Decision with Summary Reasons 
was promulgated on 11 May 1999.   At the request of the applicant Extended Reasons were provided on 28 July 1999 (the substantive Decision).

The Appeals
10	The first appeal in time (EAT/1143/99) was lodged by the Applicant on 7 September 1999.  It lay, ostensibly against the substantive Decision.  However, the Applicant’s grounds of appeal began with the sentence: 
“The original tribunal allowed no witnesses for the appellant”

That appeal came on for ex parte preliminary hearing before a division presided over by His Honour Judge Wilkie QC sitting on 8 December 1999.  On that occasion, for the first time, the Applicant had professional representation; Mr Laddie of Counsel appeared on his behalf under the ELAAS pro bono scheme.  

11	That division found nothing wrong with the substantive Decision on its face.  However, it was concerned as to the February Orders made by a Tribunal Chairman, or Chairmen, rejecting the Applicant’s application for Witness Orders.  That application had not been renewed before Mr Little’s Tribunal.  

12	In these circumstances the EAT adjourned the preliminary hearing so that the Applicant could lodge an appeal against the February Orders, albeit they considered that such an appeal would be out of time, the ordinary forty two day time limit having long since expired.  

13	The Applicant duly lodged his second appeal (EAT/215/02) on 13 December 1999.  That appeal was directed to the February Orders.  He applied at the same time for an extension of time for appealing.  

14	The application, in what was then the potential appeal 135/00 was refused by the Registrar on 1 March 2000.  Against that refusal he appealed to the President, Mr Justice Lindsay.  

15	That appeal first came on for hearing on 6 June 2000.  The Respondent appeared, represented by Counsel; the Applicant did not appear and was not represented. 

16	The interlocutory appeal was adjourned, but in adjourning the matter, so that the Applicant could arrange representation, the President delivered a lengthy judgment which raised a number of important questions including:
(1) whether the February Orders were appealable to the EAT (the jurisdiction point), and
(2) not being a decision, whether if such an Order is appealable, what time limit applies?

17	The matter came back before the President on 13 June 2001, but only to be adjourned again for further written submissions.  Finally, by a letter to the parties dated 14 February 2002 the President, without directly answering either of the two questions posed above, allowed the interlocutory appeal against the Registrar’s Order and extended time for the second appeal, thus curing any possible defect.  He directed that the adjourned preliminary hearing in the first appeal come on for hearing with the preliminary hearing in the second appeal.  

18	The combined preliminary hearing took place before a division presided over by His 
Honour Judge Reid QC on 24 July 2002.  On that occasion both appeals were permitted to 
proceed to a full hearing, on the basis that if the second appeal (215/02) against the February Orders failed, then the first appeal must also necessarily fail.  Further, the jurisdiction point raised by the President on 6 June 2000 in relation to the second appeal was expressly left for the full hearing.  This is the full hearing of the combined appeals.

Jurisdiction
19	Mr Linden, on behalf of the Respondent, does not dispute that we have jurisdiction to hear the second appeal.  However, since the parties cannot, by consent, confer on us a jurisdiction which we do not possess, we must first satisfy ourselves that we have jurisdiction.  Plainly we do, in the following circumstances:
(1) Rule 4(5) of the Employment Tribunals Rules of Procedure 2001 and its predecessor, provides that:
“A tribunal may, on the application of a party or one of its own motion, 
(a) require the attendance of any person in Great Britain, including a party, either to give evidence or to produce documents or both ……”
(2) The grant or refusal of a Witness Order is not an administrative act.  It is a judicial decision, properly characterised as an Interlocutory Order.
(3) Regulation 2(2) of the Employment Tribunals Regulations 2001, and its predecessor, to which the Rules of Procedure are scheduled, defines the word ‘decision’.  It does not include Interlocutory Orders made or refused under rule 4(5).
(4) Section 21(1) of the Employment Tribunals Act 1996 provides:
“An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal.”
(5) The use of the expression “decision of, or arising in any proceedings” must, we think, include not only a decision as defined in Regulation 2(2) of the 2001 Employment Tribunals Regulations, but also Interlocutory Orders, not being decisions, themselves arising in proceedings before an Employment Tribunal.  
(6)  If there were any doubt, it is removed by Rule 3 of EAT Rules 1993, as amended, which refers to the decision or Order of the Employment Tribunal (see Rule 3(1)(b); 3(2); 3(3)(a), (b).
(7) Thus the EAT has jurisdiction to hear appeals against Interlocutory Orders, not being decisions of the Employment Tribunal.  
(8) We do not think that the position is altered by this lacuna in the rules.  The time for appealing under EAT Rule 3(3)(a) is forty two days from the date on which Extended Reasons for the Decision or Order of the Employment Tribunal were sent to the appellant.  

The difficulty is that whereas a Tribunal can be required to provide Extended Reasons for its decision, the same is not so in respect of Orders not being decisions.  (Employment Tribunal Rule 12(4) ).  

Thus, taken to its logical absurdity, the position is that a party to Employment Tribunal proceedings has the statutory right to appeal an Interlocutory Order of the Employment Tribunal to the EAT (Employment Tribunals Act 1996 section 21(1) ).  That right is partly recognised by Rule 3 EAT Rules and yet, since Rule 3 also requires the Employment Tribunals Extended Reasons for its decision or order to be served with the Notice of Appeal (Rule 3(1)(c) ) the Tribunal is not required, under the Tribunal Rules, to provide Extended Reasons for an order which is not a decision.  

In practice this mismatch is avoided by recourse to Rule 39(2) of the EAT Rules, waiving the requirement for Extended Reasons.  In these circumstances, it seems to us, no time limit for appeals arises under the Rules, time running only from the date of the decision with Extended Reasons (EAT Rule 3(3)(a) ).  This lacuna has only recently been filled - see paragraph 3(1) of the new Practice Direction issued by Mr Justice Burton, President, on 9 December 2002.
(9)  These problems appear to have been overridden in this case by the President’s Order extending time for the second appeal (if, which we doubt, time had begun to run) and by His Honour Judge Reid’s division permitting the second appeal to proceed to a full appeal hearing, implicitly in the absence of Extended Reasons for the February Orders.  

Witness Orders
20	It is common ground between Counsel that the applicable principles for the grant or refusal of Witness Orders may be found in Dada -v- Metal Box [1970] ICR 559 (National Industrial Relations Court) and Noorani -v- Merseyside TEC Ltd [1999] IRLR 184, (Court of Appeal).   A Witness Order will be made to compel the attendance of a witness where the Tribunal (including a Chairman alone) is satisfied:
(a) that the witness can give prima facie relevant evidence and
(b) that it is necessary to issue a Witness Order.

21	Necessity will arise where, for example, a witness still employed by the Respondent is unwilling to attend without a Witness Order being issued.  However refusal to attend without an Order by a witness who can give prima facie relevant evidence will not automatically lead to the making of an Order.  The Tribunal or Chairman has a discretion which must be exercised judicially.  Relevant factors to be weighed in the balance may include the degree of relevance of the witness’s evidence and, as Mr Linden submits, consideration of whether, in order to extract relevant evidence, the party calling the witness will need, impermissibly, to cross-examine his own witness.  

The February Orders
22	We detected an important difference in the approach taken by Ms Romney and Mr Linden in their Skeleton Arguments lodged in this appeal.  Ms Romney has sought to show, with the benefit of hindsight after the Little Tribunal heard the evidence and reached the substantive Decision, that the evidence of Mr Philpott might or would be highly relevant to the credibility of witnesses called on behalf of the Respondent and indeed, his presence at the Tribunal on the Applicant’s side might have been a restraining influence on the Respondent’s witnesses who, on the Applicant’s case, were prepared to lie on oath.  She referred to various passages in the Tribunal’s Reasons for the substantive Decision where the Respondent’s witnesses are preferred to the evidence given by the Applicant.  She also refers to a letter written by Mr Philpott to the Applicant on 12 June 2001, long after the substantive hearing took place below, in which he states that he would, if called, have given evidence which contradicted that given by witnesses called on behalf of the Respondent.  

23	Mr Linden invited us to judge the appeal on the basis of the facts as they appeared to the Chairman or Chairmen who made the February Orders.  In our view Mr Linden is correct and in oral argument Ms Romney did not demur.  The question for us is whether the February Orders were made in error as a matter of law.  Did the Chairman or Chairmen (they are not identified in the relevant letters) on the material then available, fail to take into account relevant factors, take into account irrelevant factors or otherwise reach conclusions which were legally perverse.  The Wednesbury test adopted by Lord Justice Henry in Noorani, paragraph 32.  

24	We should also make this observation on the practice of paper applications for Witness Orders in advance of a substantive hearing.  Plainly it is a sensible course.  Better to obtain Witness Orders in advance of a hearing than wait until the hearing itself when delay and an adjournment may result.  However, it is incumbent on the party applying for a Witness Order to indicate precisely what evidence he seeks to adduce from the proposed witness so as to pass the test of prima facie relevance. 

25	In the present case, before answering the Wednesbury question, we should first deal with a preliminary point taken by Mr Linden.  He submits, in accordance with that line of authority from Kumchyk -v- Derby City Council [1978] ICR 1116 through to Glennie Independent Magazines (UK) Ltd [1999] IRLR 719 (CA), that since the Applicant did not raise the question of a Witness Order in respect of Mr Philpott at the substantive Tribunal hearing by way of a renewal of his earlier applications, he cannot now rely upon any error of law in the February Orders to set aside the substantive Decision.  

26	We reject that submission.  It seems to us that the Applicant did raise the issue; he applied for a Witness Order in February 1999, that application was twice turned down.  By not renewing the application at the substantive hearing he was not conceding the point (cf Jones -v- Governing Body of Burdett Coutts School [1998] IRLR 521).  It had been judicially determined against him.  Further we think that it would only be appropriate to renew the application at the substantive hearing if there was a material change in circumstances rendering the original Orders wrong, see my observations in Goldman Sachs Services Ltd -v- Montali [2002] ICR 1251 paragraph 26; Noorani, paragraph 36, per Lord Justice Henry.  

27	In any event, even if we were to dismiss the first appeal it would still arguably be open to us, using our powers granted under section 35(1) of the Employment Tribunals Act to set aside the substantive Decision as part of our Order allowing the second appeal.  We say arguably because we had yet to decide the second appeal and have indicated to Counsel that were we to do so and allow the second appeal, so we should hear further argument as to the correct Order in the event that that appeal succeeded.  

28	It is in these circumstances that we turn to the merits of the second appeal.  

29	Ms Romney accepts that the first Order made by a Chairman on 18 February 1999 cannot be impeached.  The Applicant at that stage provided no material on which the relevance of either Mr Adshead or Mr Philpott’s evidence could be judged.  We accept Mr Linden’s submission that it is for the party applying for a Witness Order to make out satisfactory grounds for the Order being made.  Accordingly Ms Romney has focused on the second Order made on 24 February.  

30	We have earlier set out the sequence of correspondence between the Applicant and the Tribunal during February 1999.  It must be viewed, we think, as a whole.  Ms Romney submits that, certainly so far as Mr Philpott was concerned, in the letter of 24 February the Tribunal Chairman took into account an irrelevant factor, namely that the Applicant may wish to call both witnesses in order to cross-examine them, which would not be permissible.  There was no suggestion, she submits, in the Applicant’s letter received on 23 February that that was his intention in relation to Mr Philpott.  

31	We cannot accept that submission.  The state of knowledge at that stage, looking at the letter received on 16 February from the Applicant, was that both witnesses had failed to respond.  In these circumstances the Applicant was not putting forward what the witnesses had told him they would say in evidence; rather what he hoped and felt they would say.  In these circumstances, it seems to us, it was open to the Chairman to infer that in order to elicit their evidence it would be necessary for the Applicant to put leading questions; in other words cross-examine them.  In these circumstances we consider that the reason put forward by the Chairman was both permissible and relevant.  

32	More generally, it is correct that full Reasons for the Chairman’s Order are not set out.  That takes us back to the difficulty in this appeal.  It is heard on the basis of an absence of Extended or Full Reasons.  The ordinary Meek principle, that the Tribunal should tell the parties why they have won or lost, cannot apply with full rigour to Orders for which Extended Reasons are not required or given.  

33	Finally, general perversity.  On the material available to the Chairman on 24 February 1999 can it be said that no reasonable Chairman, properly directing himself as to the law, could have refused a Witness Order in the case of Mr Philpott?  Our answer is in the negative.  On the limited information provided by the Applicant, despite earlier prompting by the Tribunal, it cannot be said that a Witness Order was inevitably necessary.  

34	In these circumstances we shall dismiss the second appeal.  Having done so, it follows as Ms Romney accepts, that the first appeal must also be dismissed.  Both appeals are dismissed.  Consequently the outstanding issue as to what happens to the substantive Decision in the event that the second appeal is allowed does not arise for determination nor argument.