United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S HOCKMAN QC And MR R BARRACLOUGH (of Counsel) Instructed By: The Solicitors Office Department of Trade & Industry 10 Victoria Street London SW1H ONN
For the First and Fourth Respondents For the Second Respondent For the Third Respondent	MR A WHITE (of Counsel) Instructed By: Fox Williams City Gate House 39-45 Finsbury Square London EC2A 1UU IN PERSON NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE LINDSAY (PRESIDENT):

1. On the 7th May 1998 the Secretary of State for Trade and Industry applied to the Employment Tribunal under section 3A (1) of the Employment Agencies Act 1973 for an order prohibiting Mr David Maurice Webster and Mr Geoffrey Richard Burman from carrying on, or being concerned with the carrying on of any, employment agency or employment business for such period as the Tribunal might see fit. By the same application an order was sought under section 3A (5) of that Act prohibiting First Point International Ltd and Atlantic and Pacific Investment Ltd in like terms. All four respondents to that application opposed it and there was then a hearing, spread over some nine days in early February 1999, at the Tribunal at London (North) under the Chairmanship of Mrs J.R. Hill. The unanimous decision of the Tribunal, sent to the parties on the 23rd February 1999, was that the application was dismissed. We have before us the amended Notice of Appeal of the Department of Trade and Industry ("the DTI") for whom Mr Hockman Q.C. appears, leading Mr R.N. Barraclough. Mr White appears for Mr Webster and for Atlantic and Pacific Investment Ltd ("A & PI"); Mr Burman is before us in person. First Point International Ltd ("FPI") neither appears nor is represented. It says it has ceased to trade.
2. Section 13 (2) of the Employment Agencies Act 1973 provides as follows:-

"2. For the purposes of this Act "employment agency" means the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding workers employment with employers or of supplying employers with workers for employment by them"

There is a definition of "workers" in section 13 (1) which includes all those employed "by way of a professional engagement or otherwise under a contract for services" and also, in effect, persons employed as au pairs. That definition does not purport to be exhaustive (it merely "includes" what it then specifically describes) and we therefore do not take it to exclude but rather to include persons employed under contracts of service, that being the most common meaning of the term "worker". Accordingly the business of providing information, even gratuitously, for the purpose of finding workers employment with employers amounts, subject to the exceptions we next mention, to an "employment agency" within the meaning of the Act. Section 13 (4) provides exceptions for various limited forms of publication, display and broadcast and sub-section (7) disapplies the Act as a whole to the specified areas there mentioned, none of which is relevant to the appeal before us.

3. One consequence of a body being an employment agency within the Act is that a person carrying it on:-

"Shall not demand or directly or indirectly receive from any person any fee for finding him employment or for seeking to find him employment".

- see section 6 (1). "Employment", as we have already touched on, includes engagement under a contract of service. Section 6 (2) provides:-

"(2) Any person who contravenes this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale".

It is thus a criminal offence for a person carrying on an employment agency to receive a fee from any person for seeking to find him employment.

4. Section 3A of the Act provides, so far as relevant, as follows:-

"(1) On application by the Secretary of State, 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 subsection (1) of this section (in this Act 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 or a specified event,

in either case, not more than ten years later.

(4) Subject to subsections (5) and (6) of this section, an industrial tribunal shall not make a prohibition order in relation to any person unless it is satisfied that he is, on account of his misconduct or for any other sufficient reason, unsuitable to do what the order prohibits.

(5) An industrial tribunal may make a prohibition order in relation to a body corporate if it is satisfied that -

(a) any director, secretary, manager or similar officer of the body corporate,

(b) any person who performs on behalf of the body corporate the functions of a director, secretary, manager or similar officer, or

(c) any person in accordance with whose directions or instructions the directors of the body corporate are accustomed to act,

is unsuitable, on account of his misconduct or for any other sufficient reason, to do what the order prohibits.

(6) .............

(7) For the purposes of subsection (4) of this section, where an employment agency or employment business has been improperly conducted, each person who was carrying on, or concerned with the carrying on of, the agency or business at the time, shall be deemed to have been responsible for what happened unless he can show that it happened without his connivance or consent and was not attributable to any neglect on his part.

(8) .............

(9) In this section -

"director", in relation to a body corporate whose affairs are controlled by its members, means a member of the body corporate; and

"specified", in relation to a prohibition order, means specified in the order."

5. Mr Hockman argues, and we accept, that absent some special exonerating or exculpatory circumstances, an Employment Tribunal may reasonably be "satisfied" that a person who is in contravention of section 6 (1) by reason, for example, of having received a fee from a person for seeking to find him employment, is guilty of such "misconduct" as to make him "unsuitable" within the meaning of section 3A (4) to be concerned in the carrying on of an employment agency. Of course, even where section 3A (4) is satisfied, the making of a prohibition order requires the exercise in that behalf of the discretion conferred on the Tribunal as is indicated by the word "may" in the opening words of section 3A (1). With that statutory background in mind we turn to the Tribunal's Extended Reasons.
6. Mr Webster and Mr Burman were held by the Tribunal to be the shareholders in First Point Management Ltd, a company incorporated in the Isle of Man in November 1993. Its subsidiaries included the third respondent, FPI, incorporated in England in September 1994 and the fourth respondent, A & PI. Although the proceedings continued to describe A & PI by that name (as we shall, too) that company has in fact changed its name twice, first to First Point Finance Ltd. and later to First Point Finance (Europe) Ltd..
7. FPI, whilst remaining one single company, divided its trading operations, which were in England, into four divisions: new clients, client services, marketing and visa. It placed advertisements inviting persons to telephone it. In response to inquiries thus received FPI would send an information pack inviting persons to purchase an appraisal pack for £99.95. The client appraisal pack provided for the client to give detailed information as to his circumstances and objectives. On receiving a completed client appraisal form back from the client a consultant at FPI would examine it. As the Tribunal held:-

"The purpose of the appraisal was to try to determine precisely the attributes of the client and his or her aspirations. It was then considered to see if they were realistically achievable. When the appraisal was sent back to the individual it was accompanied by agreements relating to further services in the group".

If such an agreement was signed then the client services division would appoint a client services consultant who, as the Tribunal held:-

".... became the liaison point for the client for the service he was receiving as the services, particularly in relation to searching for employment, were with the foreign companies and not with the UK company who acted only as a liaison point. The Respondents say they provided outplacement services only; they did not find jobs for individuals, they put the clients in touch with recruitment agencies".

That reference to "the foreign companies" would seem, in context, to be a reference to associated companies abroad, International Job Search (Europe) Ltd, First Point International (USA) Inc. and International Jobsearch (USA). Looking, as a whole, to the companies we are concerned with then operated by one or both of Mr Burman and Mr Webster, their professed chief expertise lay in relation to jobs abroad rather than in the United Kingdom. Making arrangements for visas, work permits and for the household and personal moves involved in a job abroad were parts of their services offered. It was the Respondents' case at the Employment Tribunal that:-

"In the period 1995-1997 the Respondents say the arrangements were such that the client would enter in to one agreement with FPI, for visa, liaison and relocation services and one with an overseas company e.g. International Job Search (USA) for outplacement services as outlined in the contract. Finance arrangements would be dealt with by Atlantic and Pacific Investments Ltd on behalf of FPI and International Job Search. Payment was made to FPI in the United Kingdom".

8. In March 1997 there was a change in the pattern of operations and in March 1998 another but the nature of each of those changes is unnecessary to be dealt with at this stage.
9. In July 1994 the Department of Employment, then the enforcing authority in relation to employment agencies, took up with another company with which Mr Burman and Mr Webster were associated, Migration Services International Ltd, whether it and they were in breach of the 1973 Act. Migration Services International Ltd was put into compulsory liquidation.
10. In September 1997 informations were preferred by the Department of Trade and Industry against FPI for two alleged offences in May 1997 under section 6 (1) and 6 (2) of the 1973 Act. Mr Bartle, stipendiary magistrate, heard the informations in March 1998 and he found FPI guilty of both offences alleged and fined it £2,500 in respect of each offence and ordered it to pay the Respondents' costs in the sum of £9,000. FPI appealed and the appeal was heard at the Crown Court at Southwark in July 1998. Judgement was delivered on the 30th July dismissing the appeal in respect of both of the offences. FPI was ordered to pay the Respondents', the DTI's, costs of the appeal in the sum of £8,950. FPI appealed by way of Case Stated to the Queen's Bench Divisional Court. That appeal was heard on the 28th July 1999 by Rose LJ and Forbes J. The appeal was dismissed with costs and leave to appeal further was refused. As the judgment in the Divisional Court was after the decision now under appeal the Tribunal, of course, did not have the benefit of it.
11. To return to the proceedings before us, the Tribunal carefully considered the evidence in relation to the period 1994-1997, before the organisational changes to which we shall return, and concluded:-

"The Tribunal therefore finds as a fact that during the period 1994-1997 i.e. whilst the Isle of Man First Point company restructure was in place, the Respondents were operating an employment agency within the meaning of section 13 of the Employment Agencies Act 1973, namely a business providing services for the purpose of finding workers employment with employers or of supplying employers with workers for employment by them".

12. The plural "the Respondents" is to be noted. There could, perhaps, have been some argument on behalf of A & PI that it had not carried on such a business; we say nothing as to the merits of any such argument but there is no cross-appeal against that finding and we therefore take it as correct.
13. The Tribunal then moved on to considering whether, in relation to the 1994-1997 period, there had been misconduct falling within section 3A (4). Without their mentioning, in terms, section 6 of the Act at that stage, it is plain that the Tribunal held that all Respondents had been in breach of it. In their paragraph 26 the Tribunal says:-

"In charging a fee, namely a sum of up to £3,000 for finding work or for seeking to find employment for their clients, the Respondents were in breach of the Employment Agencies Act".

Again, there could perhaps have been argument from A & PI that it was in a different category to its fellow respondents but, again, in the absence of any cross-appeal we take that finding to be correct. A little later the Tribunal do specifically consider section 6 of the Act and they say:-

".... We are satisfied .... that a demand for a fee of £3,000 odd to conduct a job search and visa services [sic] does fall within section 6".

14. Leaving aside section 6, the Tribunal also held FPI to have been guilty of further, more general, misconduct; it held that it was satisfied that FPI had failed to meet its contractual obligations through associated foreign companies, in particular in relation to failure to provide refunds to clients. It having thus established misconduct on the part of all Respondents, including criminal misconduct under section 6, the Tribunal was thus in a position to turn to the exercise of its discretion whether or not to make a prohibition order as against all or any Respondents under section 3A (1).
15. Very properly, as a necessary part of a judicial exercise of that discretion, the Employment Tribunal first said:-

".... The Tribunal must consider what is in effect a plea of mitigation by the Respondents when they set out what is the current position".

That requires an examination of the changes in the operating structure of the relevant businesses in early 1998.

16. The reorganisation of March and April 1998 led to a completely different structure. First Point Group Inc., with Mr Burman and Mr Webster as the shareholders, was incorporated in the Bahamas. It had as or amongst its subsidiaries First Point Management Inc and First Point Holdings Ltd. Also created, as held by the Employment Tribunal, were First Point Recruitment (Europe) Ltd, First Point (International) Europe Ltd and, presumably by way of its further change of name, First Point (Finance) Europe Ltd (which, as we have mentioned, had earlier been called A & PI and which we shall continue to call A & PI).
17. No clear picture emerges from the Tribunal's decision as to the extent, if any, to which FPI traded after the reorganisation (although it says it had ceased to trade by August 1998), nor as to A & PI's current business but the Tribunal did examine "the documentation that is currently used by the companies controlled by Mr Burman and Mr Webster", presumably meaning to include within that description the companies in the reorganised structure which we have just described. That published material, including website material, included material saying:-

"If you are looking for a change, how about living and working in a different country?".

The invitation was to apply to "First Point International" in London. On a website current at the date of the Tribunal hearing the story was told of various individuals (whether real or fictional matters not for immediate purposes) named as Gary Price, Tracey Sorrell and Brenda Robinson. As to Gary, it said:-

"So the essential first step was to ensure Gary found employment ....".

As to Tracey it said:-

"The essential first step was to ensure that Tracey found employment ....".

And as to Brenda it said:-

"First Point provided Brenda with some appropriate contacts and she obtained a job offer from a company in Honolulu".

The literature continued:-

"We can advise our clients on where their skills and experience are most likely to be in demand and introduce a specialist network of recruiters who will provide that vital direct access to local employers. So if the success of a client's [visa] application is dependent on an offer of employment - as is frequently the case - we are in a position to ensure that their job offer meets with every requirement of their visa".

In another section the material published said:-

"Unless you already have excellent contacts in your new country it is likely you will need to register with an international recruitment specialist. First Point will be happy to introduce you to recruitment companies with direct local knowledge of the employment market in your destination".

18. Given that it suffices for a business to be an employment agency despite work of that nature being only part of its overall business, given also that it is not a necessary requirement that the agency business should be carried on with a view to profit and that even the provision of nothing more than information for the purpose of finding employment with an employer for a worker suffices, it is inescapable that, after the reorganisation, one or more companies under the control of Mr Webster and Mr Burman have included amongst their businesses that of being an employment agency within the meaning of the Act. Indeed, it was conceded by the Respondents before the Employment Tribunal that "First Point Recruitment" (presumably First Point (Recruitment) Europe Ltd) is an employment agency.
19. That being so, if "What is in effect a plea of mitigation by the Respondents" were to carry real weight with the Tribunal, one might have expected there to have been an examination and conclusion by the Tribunal as to whether there was any misconduct within section 3A (4) after the reorganisation, either by way of breach of section 6 or more generally and, if there was any, whether it was such that it could be overlooked in order that, all things being considered, the Tribunal could feel sure that the public did not need the protection which a prohibition order under section 3A (1) would provide.
20. As to that, the Tribunal received evidence from three individuals, namely Mr Toop, Mr Chin and Mr Davies, as to the problems they had encountered with First Point companies after the reorganisation. The Tribunal dealt very briefly with the respective complaints of Mr Chin and Mr Davies. Mr Chin complained of inaccurate advice having been given to him but there is no hint that the Tribunal thought that that had amounted to any form of misconduct. Mr Davies had been steered by some employee of one or other First Point company towards the obtaining of a visa rather than the obtaining of a job and, again, it seems the Tribunal saw nothing to suggest misconduct of any kind in his case. Mr Hockman, with justice, complains there are no findings properly-so-called as to the presence or absence of misconduct in these 2 cases but we shall proceed on the basis that none was held to exist.
21. As to Mr Toop, who had wished to become a trucker in the United States and who responded to what the Tribunal described as "the Respondents' website", the Tribunal held as follows:-

"35. The Tribunal had one concern which arose from the way in which the current information about the truck drivers' programme in America operated, as Mr Toop pursued that question having read the Website. At first glance, it appears that the whole programme would cost about £5,000, and results in a job offer for the person participating in that programme. However, having read the Website, read Mr Cawthorne's letter to Mr Toop about the programme, and considered Mr Toop's evidence, the Tribunal concluded that although it was anticipated that at the end of the truck drivers' programme the client would be qualified to obtain employment and there were two key companies who would seek employees from the programme, there was no guarantee that there would be a job for any individual or that the arrangements would be made by the Respondents. It appeared more in the nature that prospective employers knew where to go to get hold of a ready source of drivers and, like prospective employers attending universities to seek the best undergraduates to work for them, so the truck companies would seek to obtain truckers from the programme. This is not providing a service within the meaning of section 13 of the Act".

22. We find it difficult to see why the fact that after paying his £5,000 and completing his course a client would obtain no guarantee that he would get a job is in any way relevant, still less how it could be thought to ameliorate rather than aggravate the First Point position. Nor, given that the First Point business after the reorganisation professed to include that of giving the client information to introduce him to a specialist network of recruiters who would provide vital direct access to local employers, do we see how such a service was outside section 13 of the Act. However, after setting out that background the Tribunal continued:-

"The Tribunal therefore considered whether the past misdeeds of the Respondents, i.e. preceding April 1998, should not be used against them with a view to making the order to prohibit Mr Burman, Mr Webster, [FPI] and [A & PI] from being concerned in the carrying on of an employment agency".

The Tribunal then directed itself to two separate main headings, described as (a) and (b).

23. As to the first mentioned, (a), the Tribunal took the view that A & PI (at any rate, it seems, by the date of the Tribunal hearing) was "purely a finance company" and that the Tribunal therefore had no jurisdiction to make an order against it under section 3A (1). The Tribunal in the earlier holding which we have cited and in respect of which A & PI launches no appeal, had held that in the period 1994-1997 "The Respondents were operating an employment agency". Whilst a cessation or change of business may well be relevant to the exercise of the Tribunal's discretion, it is no jurisdictional requirement under section 3A (1) that the person against whom an order is being sought should currently be carrying on business of the kind sought to be prescribed. Indeed, were that so, the legislation could be made nugatory, and the public be rendered bereft of the protection which the Act so plainly intends, upon a respondent adopting the simple device of either stopping his business altogether or changing it on the day of the hearing against him.
24. The second matter the Tribunal referred to, (b), was that "As to the first three Respondents we have serious concerns". Mr Webster and Mr Burman had proved, it held, to be not wholly credible witnesses. The Tribunal concluded in its final paragraph:-

"If we had the power to make a suspended prohibition order for one year, we would have done so. A prohibition order would be a draconian measure, which, in the circumstances of the present company arrangements which appear to comply with the legislation, the Tribunal does not consider to be appropriate".

25. The passage suggests that only an inability to suspend prohibition led to the failure to make a prohibition order and the passage addresses matters of discretion rather than of jurisdiction. It must follow that the Tribunal was satisfied within section 3A (4) that the Respondents were, on account of misconduct or for other sufficient reason, unsuitable to carry on any employment agency. Moreover, without an examination, not to be found within their decision, of how far the new company structure could effectively operate even if Mr Webster and Mr Burman had been left merely as shareholders not themselves carrying on the business and how far, if at all, FPI or A & PI currently carried on business as an employment agency it is difficult to see how the Employment Tribunal could have concluded that a prohibition order would be draconian against them respectively.
26. Against that background Mr Hockman makes a number of detailed submissions.
27. First he says that the Tribunal erred in law in holding that it had no jurisdiction to make a prohibition order against A & PI. We have already addressed this and accept the submission, but, to our more general approach, Mr Hockman adds a compelling detail. A & PI had, as its voluntary Further and Better Particulars indicated, both Mr Webster and Mr Burman as directors. Each of those individuals had within section 3A (7) been concerned with carrying on of FPI's agency business at the date, the 8th May 1997, in respect of which it was held to have breached section 6 of the Act. Accordingly each, under section 3A (7), is to be deemed responsible for that breach (at all events in the absence, which is the case, of proof of no connivance, consent or relevant neglect on his part). As A & PI had officers thus deemed to be responsible for breaches under section 6 of the Act there was jurisdiction to make an order against A & PI under section 3A (5).
28. Mr Hockman submitted next that as FPI stood outside the 1998 reorganisation and had ceased to trade, which the Respondents' own voluntary Further and Better Particulars asserted to be the case, the Tribunal, in exercise of its discretion as against or in favour of FPI, should have been unaffected by the reorganisation and the "mitigation" sought to be developed out of it. That appears to us to be too compartmentalised a view of the discretion which section 3A (1) confers; the feature that FPI, at all events for the moment, is not trading is plainly capable of being taken into account, although, in the absence of any undertaking that it would not restart, the weight to be attached to such a point is uncertain. On the other side, if it is not trading and not intending to reopen trading then the making of a prohibition order, so far as concerns FPI, would hardly seem to be "a draconian measure". If the further and better particulars on the subject were accepted as undisputed, which seems to have been the case, then, in the absence of any indication that trading might restart, to the extent that the Tribunal relied on the draconian nature of a prohibition order as a ground for not making one against FPI, such consideration amounts to an error of law in the sense of the Tribunal in the exercise of its discretion having taken into account a factor which could not properly be taken into account.
29. Next Mr Hockman submitted that the Tribunal had erred in treating the operations after the reorganisation as such that they had weight in favour of a decision not to make a prohibition order and certainly that those operations did not illustrate that the public does not require the protection of such an order. There is a force in this submission. To revert to the case of Mr Toop, the would-be trucker, his evidence was that:-

"In 1998 I became aware of First Point International's web-site which informed me that I could take part in their United States Driver Training Programme. The opening fee was £99.95 paid by credit card across a secure site on the Net (the payment of £99.95 was made on 25th June 1998 debited from my account on the 26th June 1998). The reason I pursued this offer was I thought that being a driver-training programme fees would not be so expensive. I was wrong. This time they required £5,500. After filling the assessment pack in again and returning it to First Point International they telephoned me and told me I was the calibre of person they were looking for and said they would have no difficulty in finding a job with one of two companies they were in touch with in Florida".

He did not pay the £5,500. It is, though, plain from the letter to him from Mr Cawthorne to which the Tribunal refers (a letter of the 9th July 1998, after the reorganisation, and from "First Point International", explained to be First Point International Ltd registered in England No. 2695560) that:-

"First Point International have negotiated the programme with two reputable companies based in the Florida area. They offer the going rate of pay plus bonus, and also provide first class vehicles for their drivers. This programme therefore gives you the opportunity of full and comprehensive training, your CDL and Green Card status, plus the opportunity of working for a reputable organisation".

Information was plainly to be supplied - the identity of the two reputable companies in the Florida area - for the purpose of finding employment with an employer for the person who had applied for and completed the programme referred to. FPI was therefore carrying on, after the reorganisation, the business of an employment agency. Moreover, whether or not it, FPI, was demanding or receiving the substantial fees described in those citations or whether some other associated company received them, a question which would be relevant to a charge of breach of section 6, is less material to the question of whether the vulnerable job-seeking public require protection from the associated operations of any of the four respondents as conducted after the reorganisation. The Tribunal, argues Mr Hockman, erred in law in concluding that "This is not a service within the meaning of section 13 of the Act". It does not assist the Respondents for them to assert they were providing "out-placement services" if the service, when analysed, falls within section 13. Further, to the extent that the Tribunal's conclusion that "The present company arrangements .... appear to comply with the legislation" depended on that view as to section 13, that conclusion, too, was based on error of law. It might be added that the analogy with prospective employers going to a University to find the best people to work for them was inapt. To fit the circumstances one would have to suppose at least that the University, arguing that such activity was outside the 1973 Act, operated a service under part of which, on payment to the University or some associated body, the University itself or some associated body would indicate to the undergraduate the identity of prospective employers.

30. Mr Hockman thus urges us to set aside the Tribunal's decision and ourselves to impose a prohibition order on the basis that before the reorganisation, as the criminal proceedings had made quite plain, there were breaches of section 6 of the Act; that there was thus misconduct which, under section 3A (7) and (5), infected all the Respondents; that the attempts to mitigate, depending on witnesses found not be wholly credible, provided no good reason not to make prohibition orders and that the ways in which the businesses had been conducted since the reorganisation could found no view that the public needed no protection against the Respondents.
31. Mr White accepts that there was jurisdiction to make a prohibition order against A & PI; to that extent he accepts there has been error of law, but he emphasises that what is in issue is a discretion the EAT's ability to interfere with which is severely limited and that the Tribunal had the irreplaceable advantage of hearing and seeing witnesses over the period of some 9 days.
32. Mr Burman, who has since, he says, withdrawn from any relevant directorships, tells us that he has no further desire to carry on or be concerned with the carrying on of any business, thus, it may be said (although after the Tribunal's decision) denying force to the Tribunal's fear that to make a prohibition order against him might be draconian. He argues that there has been no misconduct after the 1998 reorganisation but the Tribunal's tentative view in that direction did not amount to a holding to that effect and was in any event based, so far as we can tell, on an error of law at least as to the ambit of section 13.
33. We do not accept Mr Hockman's submission that we should ourselves exercise the discretion under section 3A (1). Even with the benefit, which we do have, of Chairman's notes of evidence, we cannot hope to have in mind the fuller awareness of the evidence which the Tribunal has. Mr White in that behalf reminds us of Lord Hoffmann's observations in Piglowska -v- Piglowski [1991] 1 WLR 1360 at 1372. If we are to set aside the Tribunal's discretion we shall do so only to remit the matter to the same Tribunal.
34. Do we, then, set aside that discretion? As we have mentioned, the Tribunal's last paragraph is consistent only with its taking the view that there had been misconduct and unsuitability on the part of all Respondents within section 3A (4). Such conclusion was either manifest, as to FPI, or inescapable as to the two individual respondents or, as to A & PI, has been held to be the case and is not appealed. Therefore the discretion under section 3A (1) fell to be exercised but, unfortunately, the Tribunal erred in law in its exercise in a number of respects. It took the view that a prohibition order would be draconian whereas FPI was for the time being at least not trading. It considered that the services rendered after the reorganisation were not such as to amount to employment agency business within section 13 whereas Mr Toop's experience, if none other, showed that a section 13 service was being continued. The Tribunal considered, wrongly, that so far as concerns A & PI it had no jurisdiction. Further, in considering the position after the reorganisation the Tribunal concentrated, it would seem, on whether the current arrangements appeared to comply with the legislation. That approach fails to give sufficient weight to a recognition that the very wide words "misconduct" and "unsuitability" within section 3A (4) are not confined to misconduct which is in breach of the Act. The Tribunal had, earlier in its decision, been alive to that point, when it held FPI to have failed to meet contractual obligations, but seems later to have overlooked the consideration. A group's business might, for example, technically avoid breach of section 6 by dividing its businesses between an employment agency (which did not demand or receive fees) and an associated company playing and intended to play a significant rôle in the chain of events between a worker's response to an advertisement and his getting a job, which did charge fees. A Tribunal would, nonetheless, on appropriate evidence, be able to discern misconduct or unsuitability in such a case notwithstanding that the 1973 Act itself was not thereby breached. It would be able to take the view that, notwithstanding the absence of breaches of the Act, job-seekers, a vulnerable class, might still require protection against the associated operations taken as a whole. It is to be noted, too, that unsuitability within section 3A (4) can derive not just from misconduct but "for any other sufficient reason".
35. With these matters in mind we determine that we must set aside the Tribunal's exercise of the discretion. We remit the matter to the same Tribunal as before for it to consider it afresh, in the light of this judgment, how the discretion conferred upon the Tribunal by section 3A (1) is to be exercised. It is to do so against the background that the pre-condition of section 3A (4) has already been met in respect of each of the four Respondents and that the evidence already received by the Tribunal is to suffice.