Miss C Osborne v Services Limited — 2019

Miss C Osborne had brought an unfair dismissal claim. The respondents said she had been suspended pending investigation into theft of money and then dismissed for gross misconduct. On 4 January 2019 her solicitors emailed the tribunal saying she wished to withdraw the claim, and on 9 January 2019 an Employment Judge issued a judgment dismissing it.

At the reconsideration hearing on 29 May 2019, Employment Judge McFatridge heard evidence from the claimant and from Lucy Neil of Livingstone Brown. He accepted both witnesses as credible and reliable. He found that the claimant had never instructed her solicitors to withdraw the claim, and that the error arose because Ms Neil had confused the claimant with another client and the wrong withdrawal instruction was entered on the file and then sent to the tribunal.

The judge held that reconsideration was competent under rule 70 and that the general case management power in rule 29 could be used to allow the claimant to withdraw the mistaken withdrawal notice, notwithstanding rules 51 and 52. Applying the overriding objective and weighing prejudice, he held that the claimant would otherwise lose the opportunity to pursue the claim and seek vindication, while the respondents would suffer only limited prejudice. The judgment dismissing the claim was revoked, the withdrawal was permitted to be withdrawn, and the claim was reinstated to proceed as accords.