Ms G Newman v HM Land Registry — 2020

This was a preliminary hearing to decide whether the claimant's unfair dismissal, holiday pay and PILON claims should be struck out under Rule 37(1), or alternatively be the subject of a deposit order under Rule 39(1). The claimant had been employed by HM Land Registry as a Developer Caseworker for about three years and was summarily dismissed with effect from 7 January 2020 for alleged gross misconduct arising from allegedly fraudulent time recording on the Fusion system, said to have resulted in payment for about 124 hours to which she was not entitled.

On the unfair dismissal claim, Employment Judge O'Rourke held that the tribunal's role was not to re-hear the disciplinary process, but to review whether dismissal fell within the range of reasonable responses, applying the Burchell test. The respondent was found to have had a genuine belief in the claimant's misconduct after as much investigation as was reasonable in the circumstances; the claimant did not dispute the thoroughness of the investigation and had admitted the mis-recording, while arguing it was an innocent mistake. The tribunal noted that the disciplinary and appeal officers had considered the claimant's work and personal pressures, but did not regard them as sufficient to reduce the sanction from dismissal, and they rejected her comparator arguments.

The tribunal found that the unfair dismissal claim had no reasonable prospects of success and was struck out. The PILON claim depended on the unfair dismissal claim and was therefore also struck out. The holiday pay claim was described as completely unparticularised and, in the absence of evidence or submissions, was struck out as well.

After judgment, the respondent applied for costs of about £4,000. The tribunal refused that application. It held that the claimant had not been formally legally represented, that the costs warning letter did not sufficiently explain the Burchell and range of reasonable responses issues or the likely cash value exposure, and that she could reasonably have believed a tribunal would re-hear the disciplinary case and potentially reach a different view.