MR M ZAMAN v DEFENCE EVALUATION RESEARCH AGENCY (CDA SECTOR) [2001] UKEAT 547_01_2205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 547_01_2205Case No Appeal No. EAT/547/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M ZAMANAPPELLANTDEFENCE EVALUATION RESEARCH AGENCY (CDA SECTOR)RESPONDENT
Before
MR COMMISSIONER HOWELL QCMS G MILLSMR R N STRAKERDate 22 May 2001
[1]APPEARANCES For the Appellant MR W PANTON (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH For the Respondent MISS S LEE (of Counsel) Instructed by: The Treasury Solicitors Queen Anne's Chambers 28 The Broadway London SW1H 9JS MR COMMISSIONER HOWELL QC In this interlocutory appeal, Mr Munir Zaman seeks to have set aside as erroneous in law two procedural decisions given by Chairmen of the Employment Tribunal dealing with his case. Those two Decisions, have been communicated to Mr Zaman in letters on behalf of the Regional Secretary to the Tribunal in Southampton, dated 28 March and 10 April 2001 at pages 5 and 6 of the appeal file before us.[2]Mr Zaman's Notice of Appeal, drafted by himself dated 5 May 2001 at page 1 of the bundle, alleges that the decisions incorporated in those two letters, which were refusals of two applications by him, for orders for particulars to be provided by the Respondents and for discovery of documents, were decisions which no reasonable Tribunal would have taken, had they been properly directed.[3]There were two subsidiary grounds of appeal alleging a breach of the right to a fair trial and Article 6 of the Human Rights Act , and an error in referring to Rules of Procedure of the Tribunals which had not come into force, but those two further grounds were not proceeded with on Mr Zaman's behalf before us, when Mr Panton (who with his instructing solicitors had been instructed only relatively recently in the case) appeared and helpfully addressed submissions to us on Mr Zaman's behalf.[4]The Respondents in the proceedings, identified only by their initials "DERA", are the Defence Evaluation Research Agency which is, I think, currently still a department of the Ministry of Defence, though there is some mention in the papers of impending privatisation. They appeared before us by Ms Lee, instructed by the Treasury Solicitor, and we have been referred to some correspondence, involving the Treasury Solicitor and Mr Zaman, at the earlier interlocutory stages of the proceedings before the Tribunal.[5]Mr Zaman's complaint to the Tribunal was presented by an Originating Application dated 5 July 2000, on the grounds of discrimination, victimisation and harassment against him. The principal ground relevant for present purposes is the allegation on page 8 of the appeal file before us, that his promotion or progression as an employee of the agency had not been commensurate with his qualifications, experience and demonstrated ability to deliver. This, he believed, was due mainly to the fact that he comes from a non-white background.[6]It is not necessary to go into the details of the facts leading up to Mr Zaman launching these proceedings (which are defended in detail by the agency) for the present purpose. This appeal relates only to interlocutory applications launched by Mr Zaman, supplementary to the usual questionnaires and requests for information that are familiar in discrimination proceedings. The reason he has launched those further applications is that he was not satisfied that he had sufficient information on the basis of what had been provided, to enable him to make out, as fully as he wished, his case before the Tribunal.[7]The story, for present purposes, starts with two lengthy documents served by Mr Zaman on 23 and 24 January 2001, which are to be found at pages 105 - 119 inclusive of the supplementary bundle of documents before us. In those documents, he asked for what he described as Further and Better Particulars based on the amended Grounds of Resistance lodged by the agency in answer to his complaint. The requests derived apparently from the responses that the agency had already given to detailed requests for information in the form of race relations questionnaires. It is not necessary to do more than to give an example of the kind of information sought under the heading of "Request for Further and Better Particulars", for example on page 107, the request said: "1. Please give the following details of all current male staff in CDA who joined (what now constitutes) DERA between July 1991 to June 1992 (inclusive) at the Grade of Scientific Officer" (excluding Fast Streamers):" and then a number of specific items of detailed information were requested in sub paragraphs such as the month and year of the person joining, the nature and extent of their qualifications, and detailed information about the way in which they had received promotion and their background, whether it was "white or non-white".[8]The seventeen detailed paragraphs of that document on 23 January were supplemented by a further five main paragraphs in a document annexed to a further request letter, dated 24 January, which was stated to supersede some of the paragraphs in the earlier request. In particular, on page 117, explicit details were sought of employment records relating to a group of people referred to as "Lead Researchers in CRP TG5 SE Technologies Group" which Mr Zaman identified as potentially relevant to the allegations of less favourable treatment of himself.[9]Those requests were not complied with in the full, and indeed, exhaustive detail which Mr Zaman required, but on 20 December 2000, an Interlocutory Order was made by the Regional Chairman of the Employment Tribunals, Mr Edwards, for discovery by way of exchange of lists of documents on which the parties respectively intended to rely, and exchange of witness statements, and finally, there was a direction that the parties were to agree a bundle of documents, properly numbered and in date order, for the use of the Tribunal at the hearing.[10]None of the detailed directions given by the Regional Chairman in that Order, which was made after a hearing at which Mr Zaman had appeared in person, and the agency had been represented by a solicitor, appear to have been complied with. Part of the reason for that was a further letter, written by Mr Zaman to the Regional Secretary of the Tribunals on 12 February 2001, on pages 53 and 54 of the further bundle, in which he said that having had no response from the Respondents, one week after the deadline set by his "request for Further and Better Particulars", he wished to make an application to the Tribunal and an Order for Discovery and Inspection of documents " as per the attached table "Discovery and Inspection-1" The letter said that he emphasised that this was not a "fishing expedition" but would provide some of the general statistical information which had been refused in the Respondent's reply to the RR65 race relations questionnaire, which had been sent to them. The table annexed to that letter, under the heading of "Possible list of records" identified again a wide ranging set of categories of different documents which Mr Zaman considered would assist his case.[11]On 13 February 2001, a further letter was written at the direction of the Regional Chairman, Mr Edwards, refusing an Order for Particulars under the original request of 23 January to which later letters of 31 January from Mr Zaman and the 12 February letter also had referred. The Order for Particulars was refused because the Chairman was not convinced that it was necessary for an Order to be made for the information requested, and the letter ended with the comment that there was concern at the increasingly voluminous correspondence being sent, and in due course a further directions hearing might be necessary.[12]A good deal of further correspondence ensued, without any definite solution to the difficulties felt by Mr Zaman emerging; we have not been referred to any specific response to his letter of 12 February (insofar as that required a fresh response in addition to what he had been told in the Tribunal's letter of 13 th ) but on 19 February 2001, Mr Zaman again wrote a detailed letter to the Regional Chairman, at pages 120 to 121 of the supplementary bundle before us, in which he said, among other things:
"Request for Discovery - 1. I have been verbally informed by Ms Acres" (she was the Tribunal secretary) "that the request for 'discovery' (dated 12/2/01) has not been granted. I would like the Tribunal to be aware of the background to this request."
And there then followed a number of detailed explanations of the time Mr Zaman had spent on compiling his Request for Discovery, his difficulties with obtaining legal representation and points about confidentiality. The letter then made a request that the exchange of documents ordered for 28 February 2001, (in the original Order made on 20 December the previous year) should be postponed to a date closer to the actual hearing. Among the reasons given for this were that, as Mr Zaman put it in his own words:
"Due to the above points I believe revealing evidence too soon will prejudice my case, as it may modify their replies. In addition, as I am basically conducting this case on my own it will be difficult to produce a full list by that date."
That letter therefore repeated Mr Zaman's earlier Application for Discovery and sought an extension of time, at least, for his own obligation to comply with the Order for Discovery by way of exchange of lists of documents that had already been made on 20 December 2000.[13]The response from the Tribunal came in a letter dated 22 February 2001 at page 122:
"Thank you for your letter dated 19 th February 2001, which has been referred to a Chairman of the Tribunals, who has instructed me to reply as follows. The contents of your letter are noted and a directions hearing may be necessary in due course. Your request for the postponement of the exchange of list of documents has been refused. Documents must be exchanged within the time limit ordered."
The matter was then referred to the Regional Chairman, Mr Edwards, who informed both parties in a letter dated 1 March 2001, at pages 65 - 66 of the supplementary bundle that it was considered a further hearing for directions was desirable in these cases, and appointing a date and time: 9.15 am on Tuesday 20 March 2001, before a Chairman sitting alone, to carry out a number of necessary functions, including clarifying the issues in this case, giving any necessary Orders for Further Particulars, considering what, if any Orders are required for disclosure of documents and the attendance of witnesses, and fixing a date for hearing and so forth. The letter concluded by reminding the parties that if a party chose not to attend, the Chairman might proceed to give such directions as appeared to be necessary or desirable in that party's absence.[14]The following day, a further letter was sent to Mr Zaman, at the direction of the Regional Chairman, Mr Edwards, in response to his recent correspondence and apparently a telephone call regarding his obligations to exchange a list of documents; Mr Edwards' directions being simply "Everything can be left to the directions hearing on 20 March 2001" That hearing did duly take place, and what happened at it, or rather what did not happen at it, was the source of the dissatisfaction that has led to Mr Zaman bringing these proceedings before the Appeal Tribunal. There is no direct record compiled by the Tribunal of the directions given at that hearing, or any Chairman's notes before us, but what happened can be discerned from two documents; first of all a letter of complaint that Mr Zaman wrote to the Chairman who had conducted the directions hearing on 20 March, Mr Cowling. That letter dated 20 March 2001 is at page 38 of the appeal file before us. In it Mr Zaman referred to the agenda for the hearing as specified in the earlier letter dated 1 March 2001 by the Regional Chairman, Mr Edwards, and continued :
"As you are aware I submitted a list of issues (summary attached) just prior to the hearing, expecting them to be addressed."
And it expressed surprise that Mr Cowling had not accepted that there should be full discussion of the contents of that further document, produced by Mr Zaman at the hearing, but simply that Mr Cowling had proceeded to fixing a date for the effective date of the whole application, and as Mr Zaman continued:
"I was not clear why you felt that the time for discovery and requests has passed" and stated that he believed that " to proceed to a full hearing without the necessary documents (or information) which DERA hold and are refusing to provide, will deny me a Fair Trial."
The letter concluded by asking for an explanation of why Mr Zaman had not been allowed the opportunity to discuss those issues at all which he had thought was the main objective of arranging this hearing.[15]A somewhat different picture emerges from the Tribunal's own letter dated 28 March 2001 at page 5, written by a secretary on behalf of the Tribunal after reference to Mr Cowling, the Chairman who had conducted the hearing. That is in the following terms:
"The Interlocutory Hearing on 20 March 2001 was listed for half an hour and was to commence at 9.15 am. You arrived at 9.35 am. The Chairman's main case was due to start at 9.45 am. It was a one day case and the parties were present and ready to begin the hearing. As explained to you at the hearing, there is no provision for ordering Further Particulars of any matters stated in the employer's reply to the Questionnaire you served under Section 65(1) of the Race Relations Act 1976. The remedy is given under Section 65(2)(b). At the hearing the Respondent volunteered to make disclosure of further documents and it was agreed that you would make arrangements with the Respondent to inspect these further documents and to agree a bundle of documents. The case was listed at the earliest available date indicated by you, which is 4 June 2001, and before 1 July 2001 as requested by you. It is hoped that your further meeting with the Respondent will provide the further information that you consider you require. You are, of course, at liberty to apply to the Tribunal for an Order if that proves not to be the case."
We interpose that the hearing date fixed for 4 June 2001 has been vacated because of this pending appeal, and that it is common ground that no inspection of documents at all has taken place, even of those volunteered by the Respondent. We understand from what we were told that that was because of reluctance by Mr Zaman to engage in exchange and inspection of documents when he did not consider that adequate particulars and Orders for Discovery in his favour had been made, so that he considered the way in which he wished to conduct the case would be prejudiced if the procedure of inspection envisaged by the Chairman at the hearing on 20 March 2001 had in fact taken place.[16]Instead, Mr Zaman wrote a further letter dated 10 April 2001 to the Regional Chairman, Mr Edwards, which is at pages 39-40 of the appeal file before us, reiterating his earlier Requests for Further and Better Particulars and Discovery and asking that, as he said "In view of the now imminent hearing I would be grateful for the tribunal to Order that the Respondent reply to my Request for Further and Better Particulars within 10 days" Under the heading of Discovery he reiterated that he had requested discovery of documents on two separate occasions previously; the Respondent had not complied with his requests and the Tribunal were asked again, in that letter by Mr Zaman on 10 April 2001 for an Order that, in his words:
"all the documents which are relevant be disclosed within 14 days"
The response to that was dated the same day and came again, from the Tribunal Secretary on the direction of the Regional Chairman, Mr Edwards. It drew attention to the overriding objective in the new Rules of Procedure as being :
"to enable Tribunals to deal with cases justly" and made a reference to this requiring a proportionate way of dealing with the case. It concluded: "
It appears from the voluminous correspondence in this file that the issues have already been more than sufficiently clarified. You had an opportunity recently at the Directions Hearing on 20 March 2001 to raise any outstanding issues. Therefore, it is not considered necessary at this stage for any further Orders to be made. It would be appreciated by the staff, who are under considerable pressure of work at this time, if both parties refrained from sending in to the Tribunal unnecessary lengthy and voluminous correspondence."[17]It is against the decisions communicated to him in that letter of 10 April at page 6, and in the earlier letter of 28 March 2001 at page 5 declining to order Further and Better Particulars of what were considered to be matters raised only by the race relations questionnaire, that this appeal is now brought to this Tribunal.[18]We have not been satisfied that any arguable error of law has been demonstrated, either in the decision of Mr Cowling recorded in the letter of 28 March 2001, or in the Decision of the Regional Chairman, Mr Edwards recorded in the letter of 10 April 2001 to decline to make the very broad Further Orders for Particulars and Discovery for which Mr Zaman was pressing. These applications merely reiterated the very broad applications he had been making throughout the proceedings, since 23 and 24 January 2001 in relation to "particulars", and February 2001 in relation to disclosure of documents.[19]As is apparent from Regulation 4 of the Rules in the Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 the Tribunal has a power to require a party to furnish in writing further particulars of the grounds on which that party relies, and it has a power, in the same way as a county court has, to order discovery and disclosure of documents which are necessary for fair and just disposal of the issues in the case. But those powers are in this jurisdiction, discretionary, and this Appeal Tribunal can only interfere with an exercise by an Employment Tribunal Chairman of the discretion, either to grant an Order or not to grant an Order under those Rules, if there is some error of law in the way that the Chairman has approached the exercise of the question of whether his discretion should be exercised or not.[20]The Decision communicated in the letter of 28 March, that there would be no ordering of further particulars was plainly justified for the reason given; that what was sought under the heading of "particulars" was, in fact, supplementary information under the questionnaire which the Tribunal had no jurisdiction to grant; and that as regards discovery there had been an offer by the Respondent to make disclosure of, at any rate, some further documents with the opportunity for the Applicant, after inspection of those documents to make a supplemental application for further documents, if this turned out to be necessary.[21]In the context of those decisions we have not been persuaded that there was anything wrong in the way that the Regional Chairman, Mr Edwards, dealt with the matter in the second letter of 10 April against which the main attack in the argument before us was mounted. The reason we say that is because, although perhaps the terms of that letter might have been more helpfully expressed to a litigant in person, we accept Ms Lee's submission that the Decision of the Chairman, embodied in that letter, has to be judged against the application that was actually being made to him. This was an application for Particulars and Discovery which, in all significant respects, had remained unchanged from the very broad and diffuse applications embodied in the letters of January and February, which were self-evidently far too broad, and unnecessarily ill-focused for any reasonable Tribunal to be expected to accede to them and make an Order based upon such requests.[22]Indeed it would, in our view, have been oppressive had any Order in the terms requested by Mr Zaman, been made against the DERA, and we consider not only that both Chairmen were within the proper ambit of their discretion in declining to make the very broad Orders sought, but that each Chairman, when faced with the applications actually being made, took the only reasonable course that any Chairman could have done.[23]We therefore have not been persuaded that there are any grounds for saying that either of the Decisions embodied in those two letters was in any way erroneous in law, and we accordingly, unanimously, dismiss this appeal.[24]We add, however, that our taking that course and the observations we have made about the Chairmen having been right to decline to make the very broad Orders they were asked, does not in any way detract from what appears to us to be the plain practical position in this case, which is that some further definition of the real issues in the case for the Tribunal to consider is desirable, if not essential, at this stage of the proceedings. It is unfortunate that that did not happen at the meeting of 20 March 2001, though we find it understandable, having looked at the documents, to see how the matter developed as it did. But a proper definition of the issues is something that does need to be done, and indeed in our view, it needs to happen now. Although there is no Order we can make on this, we express the view that the way forward in this case would be first, for those now advising the Applicant to formulate, in a properly focused way, the issues, particularly on comparators, which need to be addressed before the Tribunal if Mr Zaman's case is to be made out; and for that to be done as quickly as possible, and for a document defining the basis of comparison alleged, to be served on the Tribunal, and on those representing the Respondent.[25]That will, we hope, enable the second necessary thing to happen, which is to identify any further groups or types of documents which are, in the light of that definition of the issues, necessary to be the subject of further disclosure, in order for there to be a fair and just disposal of those issues before the Tribunal. We make no Order about that, since having discussed this appeal we do not have the jurisdiction to do so, but we do express the view that that is the obvious and sensible way for this case to be taken forward from now on.