THE INDUSTRIAL TRIBUNALS

CASE REF:	12415/18

CLAIMANT:			Eamon Clarke

RESPONDENT:		B/E Aerospace

DECISION ON AN APPLICATION FOR REVIEW

The unanimous decision of the tribunal is that the application is refused.

CONSTITUTION OF TRIBUNAL

Employment Judge (sitting alone):	Employment Judge Browne

1.	The application for review has  been considered by the Employment Judge, who has concluded that the grounds set out therein are not within the grounds permitted by Rule 34 of Schedule 1 to The Industrial Tribunals (Constitution and Rules of Procedure)  Regulations 2005 (“the 2005 Regulations”).

2.	The application for review was not received until 21 January 2019.  The decision was sent to the claimant on 12 December 2018, from which time the legislation stipulates that a review application must be made [received] in the tribunals office within fourteen days.

3.	No contact was made by the claimant with the tribunal office before 21 January, seeking an extension of time. 

4.	Whilst the claimant was therefore outside that time limit (and that for lodging an appeal to the Court of Appeal) the Employment Judge is mindful of the fact that the claimant is self-represented, and that his original intention was to appeal to the Court of Appeal.  He therefore considers that it is just and equitable to extend the time limit to deal with this application for review.  

5.	The grounds advanced in the application for review in the view of the Employment Judge amount to a challenge by the claimant to the propriety of the tribunal’s decision to proceed to make a decision.

6.	The Employment Judge has considered the relevant legislation governing applications for review. 

7.	The tribunal’s power to consider an application for a review is set out in Rule 34 of Schedule 1 to the 2005 Regulations:

“… (3) Subject to paragraph (4), decisions may be reviewed on the following grounds only-

(a) 	the decision was wrongly made as a result of an administrative error;

(b) 	a party did not receive notice of the proceedings leading to the decision;

(c) 	the decision was made in the absence of a party;

(d) 	new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or

(e) 	the interests of justice require such a review….”

8.	The Employment Judge has determined that none of the grounds in paragraphs (a), (b) or (c) of Rule 34 is met.  The Employment Judge has also considered whether (e) might appropriately be deemed to extend to the grounds advanced in the application for review. It is his conclusion that it does not. 

9.	The insertion of such a provision in the legislation appears to the Employment Judge to relate only to exceptional circumstances unique to that case.  No such exceptional circumstances appear to the Employment Judge to have been advanced on behalf of the claimant, or to exist in this case.

10.	The issue in this case was whether or not the claimant had lodged his application in time; and, if not, whether it was not reasonably practicable for him to do so.

11.	The claimant accepted at the hearing that he had inserted in his grounding complaint to the tribunal the wrong date of termination of his contract of employment, which placed his complaint outside the three month time limit, even before he contacted the tribunal office about any purported website issues, or otherwise.  He could offer no reason for making such an error.  The Employment Judge has concluded that even the most benign view of that error therefore meant that his application was lodged out of time.

12.	The claimant was unable at the hearing to provide the tribunal with any satisfactory reason as to why it was not practicable to lodge his application within time.  Whilst he raised the issues of postal delay and website problems, these were irrelevant to the issue in question, as he was already out of time. 

13.	The Employment Judge concludes that there is nothing in the application for review which satisfies the requirements of rules 34; or of rule 35 (2) of Schedule 1 to specify the grounds of the application and the details of those grounds.

14.	The Employment Judge has concluded that the grounds advanced in the application to review in this case fall outside the scope and intention of the legislation; and that there in addition is no reasonable prospect of the decision being varied or revoked. The application is therefore refused.

Employment Judge:

Date decision recorded in register and issued to parties: