THE INDUSTRIAL TRIBUNALS

CASE REF:	1110/11

CLAIMANT:			Thomas McMahon

RESPONDENT:		Natasha Delaney

DECISION ON AN APPLICATION FOR REVIEW
The unanimous decisions of the tribunal are as follows: In response to the respondent’s application for review, the tribunal has reviewed each of the determinations which are set out in the main decision, and has confirmed each of those determinations.

Constitution of Tribunal:
Chairman:		Mr P Buggy
Members:		Mr I Lindsay
			Mrs M Galloway

Appearances:
The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by O’Reilly Stewart, Solicitors.
The respondent was represented by Mr G F Wilson.

REASONS

1.	The claimant was employed in Drennan’s Restaurant, at University Road, Belfast, for approximately three and a half years.  On 9 April 2011, he was dismissed.  In these proceedings, the claimant made a claim for unfair dismissal.  He also sought leave to make a claim in respect of the failure of the respondent to provide him with reasons for his dismissal.  The tribunal granted him leave to make that additional claim.

2.	The outcome of the proceedings was as follows.  First, the tribunal upheld the claim of unfair dismissal and ordered the respondent to pay to the claimant the sum of £12,162 compensation in respect of that unfair dismissal.  Secondly, the tribunal found that the claimant’s claim in respect of his right to be provided with written reasons was well-founded and ordered the respondent to pay to the claimant the sum of £1,000 in respect of that claim.  

3.	In a handwritten note, the claimant’s representative, Mr G F Wilson, applied for review of those determinations, pursuant to Rule 34 of the Industrial Tribunals Rules of Procedure,.  That note contained a considerable number of alleged grounds for the review (“Grounds”).  During the course of the review application hearing, Mr Wilson did not proceed on all of those Grounds.  However, below, we have in any event addressed all of those Grounds.  

4.	Rule 34 provides that parties may apply to have certain decisions made by a tribunal reviewed under that Rule.  

5.	Rule 34(3) provides that decisions may be reviewed only on the grounds specified in that paragraph.  Of the grounds listed there, only ground (e) is relevant.  Ground (e) is as follows:

		“the interests of justice require such a review”

6.	As a general rule, the “interests of justice” ground does not include situations in which the only objection to the decision, on the part review-applicant, in that the tribunal has (allegedly) gone wrong in law.  Instead, the “interests of justice” ground is more usually applicable where there has been a procedural mishap.  

7.	Ground 1 of the respondent’s application for review was that Mr Wilson had only been given 90 minutes to make oral submissions.  In our view, 90 minutes, in the circumstances of this case, was a perfectly adequate amount of time.  

8.	Ground 2 was that Mr Wilson was not allowed sufficient time to go through his submissions regarding the evidence.  In our view, that Ground is not factually            well-founded.  It is true that the Chairman encouraged Mr Wilson not to go into detail on the evidence (on the basis, as the Chairman said, that the tribunal was well aware of the evidence), but he was not prohibited from referring to the evidence.  Instead, he was merely encouraged to focus on the legal issues.

9.	Ground 3 was that Mr Wilson was not allowed to make sufficient submissions on the case law regarding contributory conduct.  We are satisfied that that Ground is not factually well-founded.  Instead, Mr Wilson was given ample opportunity to explore the relevant case law.  

10.	Ground 4 is that the tribunal ignored clear evidence that seriously challenged the credibility of the claimant.  The tribunal rejects the allegation that it ignored evidence.  Instead, the tribunal is satisfied that it took careful account of all of the relevant evidence.  

11.	Ground 5 is that the tribunal made serious errors regarding other areas of key evidence.  Again, we consider that this Ground is not factually well-founded.  We are satisfied that we had regard to all of the relevant evidence.

12.	Ground 6 alleges that the tribunal failed to apply relevant case law.  We reject that proposition.  We are satisfied that we took account of all the relevant case law.  

13.	Ground 7 is that the tribunal should have dismissed the case because we concluded that the claimant was aware that income tax evasion, in relation to his salary, was occurring.  In the circumstances of this case, which for reasons which were explained at paragraph 100 of the main Decision, mere knowledge of tax evasion was an insufficient basis for depriving the tribunal of jurisdiction to entertain the unfair dismissal claim.  During the course of the review hearing, Mr Wilson asserted that the tribunal had been wrong not to cite any authority for the legal propositions which are set out at paragraph 100 of the main Decision.  In our view, there is no need for a tribunal to cite a case in support of every legal proposition which is mentioned in a Decision.  The propositions mentioned at paragraph 100 of the main Decision are now very well-known in the field of employment law.  (They were recently explored by Elias P in Enfield Technical Services  v  Payne [2008] ICR 30.)  

14.	Ground 8 is that the tribunal erred in allowing the claim in respect of failure to provide written reasons without first requiring the claimant to set out that additional claim in writing.  We reject that proposition.  The nature of the additional claim was adequately specified and recorded (at paragraphs 117 and 122 of the main Decision).  

15.	Ground 9 was that the tribunal erred by not considering, at all, the respondent’s pleaded defence of summary dismissal of the claimant for gross misconduct.  But we did indeed consider that defence.  We decided (paragraph 42 of the main Decision) that that defence was of no avail to the respondent in the present case, because he was satisfied that that alleged reason was not the true reason for the dismissal.  (See Article 130(1) of the Employment Rights (Northern Ireland) Order 1996.)

16.	Ground 10 is that the tribunal “ … seems to have decided (ultimately) on the matter on what it would have done …”.  We reject that proposition.  We see nothing in the main Decision which would justify the respondent in arriving at that view.

17.	Ground 11 is that the tribunal did not establish the reason for the dismissal.  It is not for an industrial tribunal to establish the true reason for the dismissal.  It is for the respondent to show that reason.  (See Article 130(1) of the 1996 Order.)

18.	Ground 12 is that the tribunal “failed” to recognise that the claimant’s blameworthy conduct was sexual harassment.  However, as we pointed at paragraph 73 of the main Decision, the question of whether or not particular conduct would constitute sexual harassment for the purposes of the Sex Discrimination Order is not something which has to be decided in the context of a tribunal’s determination as to whether there has been blameworthy conduct which should lead to a reduction in the amount of compensation which is payable for unfair dismissal.  Instead, in that context, the focus of attention has to be the following question: was the conduct blameworthy and, if so, how blameworthy?

19.	Ground 13 is that the tribunal erred by failing to reduce the amount of compensation, having found the claimant to be guilty of blameworthy conduct.  However, as we pointed out at paragraph 70 of the main Decision, even if a tribunal concludes that relevant conduct was culpable or blameworthy, it still has a discretion whether to reduce the award on account of such conduct, because a tribunal can only reduce an award, on account of culpable or blameworthy conduct, to such extent as it considers to be just and equitable.  By and on behalf of the respondent, many allegations of misconduct were made against the claimant by the respondent in the course of the unfair dismissal hearing.  Out of all of those allegations, we concluded that only Allegations 5 and 8 constituted “culpable or blameworthy” conduct.  We concluded that it would not be just and equitable to reduce the claimant’s compensation to any extent, on account of such conduct, for reasons which were clearly set out at paragraph 68 of the main Decision.  We also concluded that the claimant’s dismissal was not caused or contributed to by the conduct which was the subject-matter of Allegation 5, or by the conduct which was the subject-matter of Allegation 8 (see paragraph 71 of the main Decision).

20.	Ground 14, is, in essence, a repetition of Ground 12.  According to Ground 14, the tribunal erred in refusing to acknowledge that the relevant “blameworthy conduct” would have constituted sexual harassment under the sex discrimination legislation.  However, as we made clear in the course of the main Decision, and as we have already made clear above, in the present context, the question of whether or not such conduct would have constituted sexual harassment for the purposes of the sex discrimination legislation is not the acid test.  Instead, in the context of contributory conduct reductions, in relation to unfair dismissal compensation, the focus has to be on the question of whether or not the particular conduct is culpable or blameworthy.  If it is not, the question of whether or not it constituted sexual harassment is neither here nor there.  If it is, the focus of attention has to be on the degree of culpability and the degree of blameworthiness.  Attention, from those key issues, ought not to be deflected by focusing on issues which do not need to be determined in the present context (such as the issue of whether or not the relevant conduct would, or would not, constitute sexual harassment, if the respondent had been the claimant’s colleague, instead of being his employer).

21.	Ground 15 is that the tribunal erred in its approach to the arguments which Mr Wilson made regarding the implications, in the present case, of Regulation 11 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.  (See paragraphs 45 and 46 of the main Decision).  However, during the course of the review hearing, Mr Wilson was unable to draw our attention to any matter which could give properly rise to concern as to whether the Regulation 11 issue had been properly addressed by us within the context of the main hearing.    

22.	Ground 16 is that the tribunal did not allow the respondent to give evidence about her “racist” allegations.  The true position is that Mr Wilson freely decided not to pursue the racist allegation, either in the context of the issue of whether or not the dismissal was fair and reasonable within the meaning of Article 130(4) of the 1996 Order, or as a reason for reductions in the amounts of any compensation.

23.	Ground 17 is that there has been a breach of Article 6.1 of the European Convention and Human Rights, because the tribunal failed to give adequate reasons for its determinations.  We have looked again at the detailed reasons which were given during the course of our lengthy main Decision.  We are satisfied that the reasons given in that Decision are perfectly adequate for the purpose of explaining to the respondent why the various issues in the case were decided in the way in which they were decided.  

24.	Ground 18 is that the main Decision is vitiated by apparent bias, because the tribunal relied unduly upon the claimant’s representative’s written submission.  We reject that proposition.  Both parties had the opportunity to present written arguments.  Only the claimant’s representative availed of that opportunity.  It is a fact, which cannot sensibly be denied by anybody, that the claimant’s written submission does provide a permanent record of much of the substance of each party’s arguments.  Again, it is a fact that, in those circumstances, it was unnecessary, in the main Decision, to provide comprehensive details of all of the arguments of the parties (in view of the fact that a record of some of those arguments was contained in the claimant’s written submission).  We are sure that no fair-minded and informed observer, having considered the facts, would conclude, on the basis of the comments which were set out at paragraph 35 of the main Decision, that there was a real possibility that the tribunal was biased.  

25.	General comments : In our view, many of the Grounds for the application for review (as set out above) fall outside the scope of the ‘interests of justice’ ground as specified at paragraph (3) of Rule 34(3).  However, we have addressed the merits of each of those Grounds, rather than analysing each Ground to determine whether that Ground is, or is not, properly within the scope of the “interests of justice” ground.  

Chairman:

Date and place of hearing:	31 July 2012, Belfast

Date decision recorded in register and issued to parties: