MR M ZAMAN v QINETIQ (FORMERLY DEFENCE EVALUATION RESEARCH AGENCY) (CDA SECTION) [2003] UKEAT 440_02_1301

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 440_02_1301Case No Appeal No. EAT/440/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M ZAMANAPPELLANTQINETIQ (FORMERLY DEFENCE EVALUATION RESEARCH AGENCY) (CDA SECTION)RESPONDENT
Before
His Honour Judge J McMullenDate 13 January 2003
[1]APPEARANCES For the Appellant MR ZAMAN THE APPELLANT IN PERSON JUDGE J McMULLEN QC : This is an appeal from an order made by the Registrar on 6 September 2002, in which she rejected an application by the Applicant to join DSTL as a Respondent to the EAT proceedings.[2]The Registrar considered the application and further submissions in writing and submissions by the Respondent. These are before me. The Registrar directed that the application be refused as the Appellant had shown no legal grounds for the joinder of an organisation not a party at the Tribunal below.[3]The Applicant had contended that the proceedings should have involved what is in classic terms the transferor following the application of TUPE. The decision of the Tribunal is recorded in the proceedings following an adjustment of the name to be Qinetiq, formerly DERA (CDA Sector).[4]As thus constituted, therefore, proceedings which arise in an employment context would be properly weighed against the transferee. However, because DSTL had been cited in the proceedings brought by the Applicant, and individual employees of the organisation had been cited, the Tribunal Chairman indicated some concern. I have a clear picture of how the proceedings developed, because the Chairman has written his comments in response to the Applicant's appeal by a letter to the Registrar dated 5 November 2002. Having consulted his notes, he confirmed that the Tribunal sat on 12 November 2001. Both parties were represented by Counsel. Both Counsel explained jointly that there were possibly fruitful discussions and they would like time during the day to consider those discussions. The Tribunal agreed to use the time by reading certain parts of the evidence, as directed by the parties, and then, throughout the day Counsel reported regularly to the Tribunal on the progress of discussions. In due course, no agreement could be reached and the hearing would begin properly on 13 November 2001, as the Chairman put it. He went on to say this:
"During the initial discussion of the case at about 9:50 am [that is, on 12 November] one of the matters raised was the identity of the Respondent, since I was aware that the Applicant had at an earlier directions hearing raised this matter. Both Counsel agreed that the Respondent was correctly described as Qinetiq and that this was a privatised organisation. I have made a note to this effect."
[5]Thereafter, the whole of the proceedings, which went on for 15 days and a further 6 days in Chambers over four months, were conducted against that Respondent. The Applicant now seeks to bring in DSTL, arguing that some of his claims arise by statute and are properly to be invoked against DSTL and he cites, as authority for this proposition, McKinnon v Transport & General Workers Union , EAT [2001] ICR 1281. It seems to me however, that the application must be predicated upon a live question before the Employment Tribunal. Since there is no evidence to gainsay what the learned Chairman has said, the Chairman and the Tribunal operated upon an agreed position as between Counsel representing both of the parties.[6]Even if this were a live issue Mr Zaman, who has argued comprehensively today, misunderstands the nature of the obligation imposed upon the United Kingdom by the 2001/23 EC Directive on business transfers. This provides, under the heading of "Safeguarding of Employee Rights", as it did in its earlier incarnation in 1977 77/187 EEC, as follows. "Article 3.1 of the Council Directive: The Transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on the date of the transfer shall, by reason of such transfer be transferred to the Transferee. Member states may provide that after the date of transfer, the Transferor and the Transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer."[7]Thus, in fixing liability on a transferee by reason of the transposition of that obligation into domestic law by TUPE, the United Kingdom cannot be in breach of Article 3.1. The obligation is to provide a remedy but the form of implementation, that is, liability passing to a transferee, rather than liability passing jointly and severally to the transferor or the transferee, is an implementation of the Directive within the margin of appreciation given to a Member State under that Directive. Mr Zaman's argument based as it is upon the application of that Directive is misconceived.[8]In my judgment Mr Zaman was properly represented at the Employment Tribunal and, throughout the first day, left to his Counsel the dealings with the Employment Tribunal. The Employment Tribunal dealt with both Counsel on various occasions, for practical reasons involving case management. Very proper opportunity was given to what the parties described as "potentially fruitful discussions". It is clear to me that, during the course of the first day, when the Applicant was properly represented by his Counsel, clarification was offered by her to the Employment Tribunal about the relevant Respondent and it is not now open to the Applicant to challenge the decision which has been made in respect of Qinetiq only. I therefore dismiss the appeal from the Registrar's Order.