E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100267/2018 Held in Glasgow on 1, and November 2018 Employment Judge: W A Meiklejohn Ms Ajoke Toriola v Represented by: Mr M Ross - Solicitor HM Revenue and Customs — 2018

Ms Ajoke Toriola was dismissed by HM Revenue and Customs on 1 September 2017 following an internal misconduct process arising from a tax credit overpayment. The tribunal found that she had received the letter of 9 March 2017 telling her the reduced overpayment amount and requiring payment or contact by 23 March 2017, but accepted her evidence that she had not read the letter fully and was not aware of the deadline. It also found that she knew there had been a substantial overpayment and that she later arranged a time-to-pay arrangement on 25 April 2017, after the matter had already been referred to Internal Governance.

Applying section 98 ERA 1996, Burchell and Iceland Frozen Foods, the tribunal accepted that HMRC had a genuine belief in misconduct, that there were reasonable grounds for that belief, and that the investigation was thorough. It nevertheless held that the dismissal decision fell outside the band of reasonable responses because Mr Barclay said that, as an employee of Debt Management, the claimant should be held to a higher standard than other HMRC employees, and because he described her as a 'second time offender' in relation to a prior tax credit overpayment. The tribunal held that this description was outwith the band of reasonable responses and that it was material to the sanction chosen.

The tribunal also found fault with the appeal process. Ms Watson described her role as limited to reviewing evidence, procedure and consistency, and said she could not change the decision even if she disagreed with it. The tribunal held that this fettered the discretion of the appeal officer and did not amount to a proper independent appeal, referring to paragraph 4.17 of the ACAS Guide: Discipline and Grievances at Work (2017). It therefore concluded that the dismissal was unfair.

On remedy, the tribunal refused reinstatement and re-engagement. It calculated a basic award of £635.66 based on two years' service, age 33 and gross weekly pay of £317.84, and added £300 for loss of statutory employment protection rights, giving £935.66 before deduction. It found that the claimant contributed to her dismissal by failing to put a time-to-pay arrangement in place as promptly as she should have done, and reduced the aggregate by 50%, resulting in a final award of £467.83. It found no future loss because the claimant's post-dismissal earnings exceeded what she would have earned had she remained employed by HMRC.