QINETIQ v MR M ZAMAN [2001] UKEAT 1504_01_0911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1504_01_0911Case No Appeal No. PA/1504/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
QINETIQAPPELLANTMR M ZAMANRESPONDENT
Before
Mr Justice LindsayDate 9 November 2001
[1]APPEARANCES For the Appellant MR FRASER URQUHART (of Counsel) Instructed by: DERA (CDA Sector DERA Foundation Ively Road Fernborough GU14 OLX For the Respondent MISS JUDE SHEPHERD (of Counsel) Instructed by: Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH MR JUSTICE LINDSAY (PRESIDENT) I have before me a Notice of Appeal of an interlocutory character in the matter Zaman v Qinetiq . Qinetiq was formerly DERA and the two IT1s that Mr Zaman lodged in July 2000 and December 2000 had as Respondents DERA, but DERA, I am told, has been privatised and its successor is Qinetiq.[2]The application concerns a hearing before the Employment Tribunal at Southampton, currently listed for five days starting this coming Monday, this being Friday. At a very late stage in the run-up to that hearing, Dr Pickard, who is an employee of a senior rank in Qinetiq, has been taken ill and on 8 November (yesterday) Qinetiq's solicitors, Cameron McKenna's, sent a fax to the Employment Tribunal at Southampton, setting out an application for the case to come out, to be adjourned on account of Dr Pickard's sickness.[3]The letter, in fact, concerns also the inability of a Dr Harris to give evidence, but that has fallen into the background and Mr Fraser Urquhart, for Qinetiq, has only relied upon the position of Dr Pickard.[4]The letter says, inter alia:
"Due to recent events it transpires that two of our seven witnesses will not be able to attend the hearing next week. We have just received news that Dr Nigel Pickard has been signed off sick for a period 10 days with stress and a virus. We have also been informed that his vision has been impaired to the extent that he cannot read. From the information we have received, we cannot imagine that his doctor would give him leave to attend as a key witness in an Employment Tribunal hearing. Dr Nigel Pickard is a key witness for the Respondent in this matter. He is to give vital evidence about the structure of DERA and the way the promotion system works in DERA (which is the principal part of the Applicant's case)."
As I understand it, Mr Zaman's case is that he was not promoted as fast as he should have been and that the reason for that was racial discrimination but he also relies upon a series of incidents, presumably of a racial character, in support of that basic allegation.[5]Cameron McKenna's letter continues:
"He [Dr Pickard] is also individually identified in many of the allegations which the Applicant has made in this case. If the hearing were to proceed without Dr Pickard present, the Respondent's ability to answer the case against it will be substantially prejudiced."
And they point out also that Mr Zaman's Counsel would not be able to cross-examine him, because he would not be there, and they ask for the matter to be treated as a matter of urgency.[6]Mr Zaman's solicitors, Russell Jones & Walker, put in a substantial fax to the Employment Tribunal, in opposition to Cameron McKenna's application, and that led to a relatively short letter from the Chairman that said:
"In light of the Applicant's solicitors' objections, and bearing in mind the contents of the Respondents' solicitors' letter, the Regional Chairman sees no reason why these cases cannot proceed next week, although he appreciates that the cases may not be completed next week. In any event, it is possible that the Chairman may not be available on Wednesday 14 November 200. The cases will commence on Monday 12 November 2001 as already arranged."
[7]Well, there are a number of factors that have been drawn to my attention. The first is that although I mentioned the case as being listed for five days, it is likely, both Counsel agree, (and I should have mentioned that Miss Shepherd is appearing for Mr Zaman) that it could very well be a ten day case and so whatever happens next week, it is only going to be part heard.[8]Secondly, as we have seen from the Chairman's letter, only four days will be likely to be available next week because it looks as if there will be no Chairman available on Wednesday, so it is even more likely that the case will have to be split and go over to some other more distant time, if the case is not adjourned altogether.[9]It is a notable feature also that no doctor's certificate has been provided; the application might, perhaps, have carried more weight with the Chairman had one been provided, but no challenge is being made to the fact that Dr Pickard is as ill as it has been said that he is.[10]I am asked, of course, to set aside the Chairman's ruling, but I can only do that if I can see some error of law. Well, when there is a discretion, as Miss Shepherd points out, as wide as the one here appropriate, namely the wide provision enabling adjournments and time to be afforded, it is, of course, difficult for an appellant to show error of law. The appellant would need to show in such a discretionary matter that either the Chairman had taken into account that which he should not have done, or had left out that which he should have taken into account, or otherwise had erred in principle of law. But, as we have seen from the Chairman's letter, he refers to both sides' communications and he comes to a view. I am not able to say that there was an error of law in the Chairman's conclusion.[11]Whether he would have determined other than as he did had he heard Mr Fraser Urquhart's arguments, in particular that asserting that for a fair conduct of the case Dr Pickard will need to be present to give instructions to Mr Fraser Urquhart, when Mr Zaman comes to be cross-examined, is hard to say, but the Chairman can hardly be criticised for not taking into account that which was not put to him.[12]So I cannot see error of law in the Chairman's conclusion. In a sense that, I suppose, is an end to the matter, but also it has to be borne in mind that there is nothing that stops Qinetiq renewing its application to the Tribunal if, consistently with the argument that I have heard, it does prove that, on account of Dr Pickard's absence, there is real injustice, as the case progresses, to Qinetiq.[13]In the ordinary way Dr Pickard's evidence-in-chief will be given by witness statement, and I understand that has been prepared. So short of the point at which the instructions that I have just mentioned need to be given, it is only the point at which cross-examination of Dr Pickard arises that his absence would be noted. As to that, it would seem likely from the timetable that I have touched upon that it could be outside next week in any event.[14]If, relative to the point about Mr Fraser Urquhart needing to get instructions from Dr Pickard and yet his being absent, the point does arise next week, well then, I have no reason to think that the Tribunal will not be able fairly to respond to an application for an adjournment, if and when it is made on such lines. But it is as yet difficult to foresee exactly when that might happen, if it does, and it could well be that the Tribunal would prefer to have, or the Zaman side would prefer to have, two or three days hearing under its belt, so to speak, before the matter breaks off on such account.[15]All in all, as I have said, there is no error of law in the Chairman's Decision, and if it transpires that there is real injustice in the particular manner in which the case unfolds, well then, Cameron McKenna can no doubt instruct Mr Fraser Urquhart then, in the particular circumstances that have arisen, to apply afresh for an adjournment and explain it fully in the light of the situation as it then is, and there is no reason to suppose that the Tribunal will not be able justly to respond to whatever application has then been made.[16]So, all in all, I do not set aside the Chairman's ruling, and the case will be heard on 12 November, as arranged. I do not think this case falls within Rule 34(1) and I make no Order as to costs.