THE INDUSTRIAL TRIBUNALS

CASE REF:	2183/10

CLAIMANT:			Serge Tagro

RESPONDENT:		Royal Mail Group Limited

DECISION ON APPLICATION FOR REVIEW
The unanimous decision of the tribunal is that the claimant’s application for a review of the tribunal’s decision is dismissed.  

Constitution of Tribunal:
Chairman:		Mr B Greene
Members:		Ms E Kennedy
			Mr U Adair

Appearances:
The claimant appeared in person.

The respondent was represented by Mr P Hopkins, of counsel, instructed by Napier and Sons Solicitors.

1.	On the 3rd, 4th, 5th, 6th, 10th, 11th, 12th, 13th and 19 May and 26 September 2011 at Belfast a claim for disability discrimination, race discrimination and unfair dismissal was heard.

2.	The tribunal dismissed all of the claimant’s claims.

3.	The tribunal decision was issued on 7 October 2011.

4.	By email of 13 October 2011 the claimant sought a review of the tribunal’s decision on the grounds that:-

	(1)	the decision was wrongly made as a result of an administrative error, and

	(2)	new evidence has become available since the conclusion of the hearing which could not have been reasonably known or foreseen at the hearing, and

	(3)	the interests of justice require such a review.

5.	At a preliminary consideration the chairman granted the review as the applicant had relied on three of the statutory grounds for a review under Rule 34(3) Industrial Tribunal Rules of Procedure 2005 as amended.  Further, as he asserted new evidence had become available since the hearing and the interest of justice required such a review, it could not be said that there was no reasonable prospect of the decision being varied or revoked.  

6.	The review hearing was listed for 2 February 2012.

7.	In support of his application for review the claimant relied on a written submission of six sections that dealt with the three grounds set out above.  In the submission there were new allegations of fact.  The claimant amplified his points before the tribunal.

8.	In support of his submission that the decision was made as a result of an administrative error the claimant relied on sections 1 and 2 of his written submission, namely;-

	(1)	The administrative error alleged in section 1 was that the tribunal, having described him as coming from Africa and having French as his first language,  had failed, to record he was a British citizen.

	(2)	In section 2 the administrative error was the failure by the respondent to attach to the claimant’s contract of employment the respondent’s Attendance Procedure and Code of Conduct.  He alleged this omission was not rectified until the discovery process prior to the hearing.  The claimant was therefore ignorant of the procedure and in particular the appeal process.  

9.	In support of his submission that new evidence had become available since the hearing the claimant relied on sections 5 and 6 of his written submission, namely;-

	(1)	In section 5 the claimant refers to evidence of mis-delivery by colleagues of his which he alleges demonstrates less favourable treatment as compared to his Irish, British or white comparators. 

	(2)	In section 6 the claimant refers to his belief that he was being victimised because he was taking part in the strike at the Royal Mail.  He also challenged Mr Crookes right to impose a reprimand on him for mis-delivery.  He further asserted that Mr Crookes pushed him out of his job for race reasons.

10.	In support of his submission that the interest of justice require a review the claimant relied on all six sections, although four of the sections were also relied on as support for an administrative error and for new evidence.  The sections relating to the interest of justice alone were sections 3 and 4, where he contended;-

	(1)	In section 3 the claimant denies he was counselled on 29 December 2007 and wants to see the evidence of the counselling.

	(2)	In section 4 the claimant alleges that the respondent had failed to carry out a health and safety risk assessment after his injury on 22 July 2009.  He contended that the respondent did not implement the occupational health report recommendations from ATOS.  Further he contended Connor Crookes did not do anything about arranging physiotherapy for him until 10 December 2009 and not 7 October 2009 as Mr Crookes had stated.  

11.	For the respondent Mr Hopkins asserted that the claimant had failed to establish any of the three statutory grounds for review on which he relies to disturb the findings and decision of the tribunal.  Specifically he submitted:-

	(1)	There was not any evidence of an administrative error referred to by the claimant nor a claim that the tribunal had committed an administrative error.

	(2)	There was not any new evidence available since the hearing.  The matters referred to by the claimant related to his disagreement with the tribunal’s findings and were based on evidence given to the tribunal or contained in the agreed bundle, which necessarily cannot be evidence that had become available since the hearing. 

	(3)	While the interest of justice ground has widened from its initial position none of the matters referred to by the claimant relate to this ground of review.  Mr Hopkins referred to the following matters:-

		(a)	The claimant has not challenged the tribunal’s findings that he was not disabled and therefore none of the arguments can overturn the tribunal’s finding of no disability discrimination.  

		(b)	The claimant’s arguments, about certain aspects of the tribunal’s findings of less favourable treatment, does not justify an overturning of the tribunal’s decision that there was not any race discrimination.  Although the tribunal found less favourable treatment in certain instances it dismissed the claim for race discrimination as there was not any evidence before it that the ground for the less favourable treatment was race or ethnicity.

		(c) 	In relation to the unfair dismissal claim the claimant has not challenged that the dismissal was within the band of reasonable responses for the act of misconduct.  Nor has he challenged the finding that the dismissal was for a breach of the respondent’s Attendance Procedure and therefore his criticisms of the tribunal’s findings, at their height, cannot overturn the tribunal’s finding that this was not an unfair dismissal.

12.	Mr Hopkins submitted that essentially the claimant disagrees with the tribunal’s findings and its conclusions which in themselves are not grounds for a review. 

13.	Harvey on Industrial Relations and Employment Law at Section P1 sets out the considerations that a tribunal must have regard to in considering whether to grant a review of its decision on the grounds advocated by the claimant.  

	Decision made as a result of administrative error
	
	(1)	“… According to Judge Peter Clarke in Sodexho Limited v Gibbons [2005] IRLR 836, [2005] ICR 1647, the changed wording in Rule 34(3)(a) is not simply designed to cover errors caused by faulty equipment in the Employment Tribunal Office, or the acts of agency staff engaged on administrative duties in that office, it is not limited in any way (para 40).  It was therefore held to be capable of covering an administrative error by a party, such as, in Sodexho, an error by the claimant by inserting the wrong postcode of his solicitors in his claim form, with the result that the service of a deposit order on his solicitors by the tribunal was delayed and, because of the delay, a striking-out order was issued under Rule 20(1) for non payment of the deposit.  Such an error was capable of being reviewed under Rule 34(3)(a).”  [1130.01]

	New evidence has become available.

(2)	“Before a party can obtain a review on this ground they must show that the new evidence which he now seeks to adduce was not available before the conclusion of the original hearing, and also that its existence could not reasonably have been known of or foreseen.  If he is unable to do so, his application will fail …” [1135]

	“In a decision concerning the admissibility of fresh evidence in the EAT, Popplewell J stated that there should be read into [Rule 34(3)(d)] a provision similar to that obtaining in the EAT, that not only must the new evidence be relevant but that it will probably have an important influence on the result of the case (Wileman v Minilec Engineering Limited [1998] IRLR 144 at 147).  The reason for this is ‘that simply because it is relevant, unless it is also likely to affect the decision, a great deal of time will have been taken up by sending cases back to an [employment] tribunal for no purpose’.  “[1137] 

Interest of justice

(3)	“… But whilst the discretion under para (e) is undoubtedly wide, it is not boundless; it must be exercised judicially and with regard, not just to the interests of the parties seeking the review, but also to the interest of the other party and to the public interest requirement that there should, as far as possible, be finality of litigation.  Moreover as with the exercise of any other power under the Rules, tribunals and employment judges must seek to give effect to the overriding objective when exercising their discretion under Rule 34(3)(e).” [1138]

14.	The tribunal is not satisfied that any of the grounds for review relied on by the claimant had been established.  In so concluding the tribunal had regard to the following matters:-

	(1)	The claimant did not identify an administrative error.  The matters to which he referred in his submissions do not constitute an administrative error for the purposes of a review application.  The claimant’s British citizenship is irrelevant to the tribunal’s decision.  The tribunal dealt with the claimant’s claim of not having been provided with the Attendance Procedure at paragraph 5(9) of its decision.

	(2)	The claimant has not identified any evidence that had became available since the hearing.  His reference is, to evidence in the bundle, or evidence heard by the tribunal, or evidence not given, but not because it was new.  Further he has not advanced any evidence which would probably have had an important influence on the result of the review application.

	(3)	The claimant has not advanced any argument that could fall under the heading of the interests of justice.  Rather the claimant disagrees with the tribunal’s findings and conclusions.  Disagreement with the tribunal’s findings or conclusions is not a reason for a review under this ground.  

15.	The tribunal accordingly dismisses the claimant’s application for review of the tribunal’s decision.

Chairman:

Date and place of hearing: 2 February 2012, Belfast.		

Date decision recorded in register and issued to parties: