Ms D Namaczynska v Brighter Home Care Ltd: 1402848/2022
EMPLOYMENT TRIBUNALS
Case No 1402848/2022
Between
Ms D NamaczynskaClaimantBrighter Home Care LtdRespondent
Before
Employment Judge J BaxIn person for claimantDate 19 July 2024
JUDGMENT
The judgment of the tribunal is that:
REASONS
[1]This is the judgment following a preliminary hearing to determine whether the claimant’s claims should be struck out on the grounds Claimant was not actively pursuing the claims, had failed to comply with orders or the claims had no reasonable prospects of success.[2]The hearing was conducted by video. During submissions the Claimant said that she had not complied with the orders or engaged with the process in part due to the deterioration of her mental health. The Claimant said that she could obtain a report from her doctor. It was agreed with the parties that the Claimant would obtain a report and she could make further written submissions about her mental health. The Respondent was given permission to make further written submissions in relation to any medical report and submission by the Claimant. It was agreed that the decision would be taken on the basis of the oral submissions at the hearing and the further written information, without a reconvened hearing and that the parties would be given a written Judgment and reasons.[3]In this case the claimant brings claims of unfair dismissal, notice pay, accrued but untaken holiday and unlawful deductions from wages.[4]The claimant notified ACAS of the dispute on 23 June 2022 and the certificate was issued on 20 July 2022. The claim was presented on 30 August 2022. Background and procedural matters[5]The claim form says she was engaged in a zero hours contract. In Spring 2020 she had two clients. From then she worked when the Respondent required her. In October 2021 the Respondent told they had seven nights a week to cover and she could move permanently. She says that she often worked longer than her contracted hours but did not receive full pay. After the death of a client, the Claimant started going from client to client and was supposed to be reimbursed at the rate of 30p a mile. It was alleged that she was overcharging for her mileage and lacked in professionalism. She also referred to having to use a hoist on her own or with untrained people. She was accused of putting in the diary a false record of a shift that she had not done. The Claimant was dismissed without notice.[6]The response details that the Claimant was initially hired on a zero hours contract and then moved to a 20 hour per week contract in January 2020. She was offered up to 40 hours per week, but it was not guaranteed. The Claimant was never obliged nor offered work involving seven overnight stays. She was paid for the hours that she worked. Four verbal warnings were issued to the Claimant, followed by written warning. She was frequently 20 minutes late for numerous appointments without reasonable excuse, or appointments were missed entirely. There was a failure to explain absences to the Respondent satisfactorily. She afforded less than an acceptable level of dignity to several clients and frequently neglected clients in order to take personal or social calls. There were recorded instances of absenteeism after shifts were due to have commenced, leaving clients with no care. The Claimant failed to arrange obligatory online training in breach of her obligations under the CQC regulations. The Respondent denies the claims.[7]On 31 October 2022 the claim was listed for a 2 day hearing, commencing on 30 January 2023. Case management directions were given. The Claimant was ordered to provide a schedule of loss within four weeks. The parties were ordered to exchange a list of documents on which they wanted to rely at the final hearing within six weeks of the date of the order. Six weeks before the hearing was due to start the Respondent was required to prepare a file of documents for the hearing. Four weeks before the final hearing the parties were required to exchange witness statements for the hearing.[8]On 3 January 2023 the Respondent applied to strike out the claim. In the application it was set out that the Claimant had not been heard from and she had not provided a statement of remedy sought. They had been informed that the Claimant no longer lived at the address stated on the claim form and therefore postal correspondence was impossible. Enquiries have been made of the Claimant’s daughter who had said that she was unaware of the Claimant’s whereabouts. There was difficulty in trying to exchange documents and witness statements and they had not been able to progress the matters in the case management order. In the alternative the Respondent suggested that the hearing should be postponed.[9]Attached to the application was a letter dated 3 January 2023 sent to the Claimant at the email address on the claim form. The letter said that she had not been heard from, that she had not set out what remedy was sought and it reminded her of the case management directions. On the basis that she appeared to be uncontactable she was informed that an application going to be made to strike out the claim or for postponement of the hearing.[10]On 9 January 2023, Employment Judge Cadney directed that the Claimant commented on the Respondent’s application by 16 January 2023. On 16 January 2023 the Claimant wrote to the Tribunal, asking for an interpreter on 30 and 31 January. She also asked if the court provided a representative of someone who could not afford a lawyer. The Claimant sent a separate email attaching contact details for the video hearing, including those of her witnesses, and asked if there was anything else she needed to do, unfortunately this was not referred to a Judge. The Claimant did not provide a response to the Respondent’s application.[11]On 18 January 2023 the Respondent renewed its application. It detailed that the Claimant had completed her part of the form giving details of witnesses she sought to call, but nothing further had been provided. The Respondent’s position was that the Claimant had not set out the basis of her claim, failed to set out remedy sought, failed to provide a list of documents and failed to provide a witness statement.[12]On 19 January 2023, Employment Judge Livesey asked the parties to say if they thought a two-day hearing would be insufficient. The Claimant was also required to provide comments on the Respondent’s application to strike out by return.[13]On 23 January 2023, the Respondent said it had not received any response from the Claimant and due to a lack of information they could not take instructions from their client as to the length of the hearing. The Respondent renewed its application to strike out the claim.[14]On 26 January 2023 the final hearing was converted to a preliminary hearing for three hours at which the Respondent’s application to strike out the claim would be determined and if appropriate any further case management orders would be made.[15]When the hearing started, the Claimant, via the interpreter, confirmed that her first language is Polish. Her ability to understand spoken English was limited and if she became nervous she was unable to communicate in English. She was able to understand simple written English.[16]The history of the claim was explained. The Claimant explained that after she presented the claim she had a mental health breakdown and had been unable to deal with anything to do with the claim and described herself as being ‘a vegetable’. Basis of claim[17]Before hearing the application, the basis of the claim was explored with the Claimant. In relation to the unfair dismissal claim the Claimant said that she had not been given previous warnings or told about previous misconduct. She attended a meeting and was given a letter which told her she was dismissed. The letter said that if she disputed it, a meeting could be arranged. An invitation for a meeting was sent the next day when the Respondent knew that she was abroad on holiday. She said that she was dismissed because she was raising concerns about working with untrained people when using a hoist with a client and it was risking the client’s health and safety and it was making her back hurt. This was said to her manager, Malgorzata Walensa. The Claimant disputes she was guilty of misconduct. She also says that the Respondent was recruiting people from abroad and was dismissing those who were already working for it.[18]The Claimant says that she had not received pay for accrued but untaken holiday. She was not paid fully for her travel expenses and that there had been a dispute because she had taken an alternative route in order to avoid roadworks. She also says that she was not paid for all of the hours she worked.[19]It was understood that the Claimant was alleging that she was dismissed because she had been a whistle blower. The Respondent did not object to an application to amend the claim to include automatically unfair dismissal for making a protected disclosure (whistle blowing). The application to amend was granted.[20]After the hearing, the Claimant provided a medical summary from Poland recording that in 2011 she was diagnosed with Bipolar disorder. She also provided a statement about her condition and the effects after her dismissal. a further extract was taken from a UK medical record from 2021 when the Claimant’s daughter had contacted her doctor about the Claimant appearing very low and driving erratically.[21]The Respondent sent two letters dated 20 and 28 February 2023 making further representations. Application[22]I considered the oral written submissions of both parties. I did not hear any oral evidence, and I did not make findings of fact as such. Respondent’s submissions[23]The Respondent says that the claims should be struck out because the Claimant was not actively pursuing the claims, had failed to comply with orders or the claims had no or little reasonable prospects of success on the following basis. It was submitted that until the Claimant clarified what the claim was about, at the hearing on 30 January 2023, it was woolly and instructions could not have been taken from the Respondent. The other part of the application related to having not heard from the Claimant and that the Claimant had not complied with any of the orders.[24]The Respondent was asked, what its position was in relation to the prospects of success now that the Claimant had clarified her claim and permission had been given to amend the claim to include automatically unfair dismissal. The Respondent was asked about the significant factual dispute between the parties, which was accepted. The Respondent suggested that the application had moved more towards complying with orders and not actively pursuing the claim. In terms of the orders the Claimant had not set out what remedy she was seeking and failed to supply documents or witness statements for use at the final hearing, as set out in its letter dated 18 January 2023. The Respondent said as such it was unable to prepare for the claim.[25]It was submitted that the crux of the application was prejudice to the Respondent. The Respondent relied upon the decision in Emuemukoro v Croma Vigilant (Scotland) Ltd & Ors UKEAT/0014/20/JOJ and the question as to whether it was possible to have a fair trial within the trial window.[26]It was further submitted, that the Claimant had not sought any meaningful contact post issue with the Respondent. The Respondent was prejudiced in that its representatives had been unable to take any form of instructions from it because the Claimant had not provided any information. If documents have been provided in November or December 2022, they could have been put to the Respondent in order to see if her position was agreed. The Respondent was left wondering if there had not been a direct instruction from the Tribunal whether there would have been any contact at all, leading them to believe that the claimant was not being actively pursued.[27]The Respondent said that there were no reasonable or little reasonable prospects of success, because evidence had not been provided. Claimant’s submissions[28]The Claimant submitted that after she presented the claim the Respondent did not want to negotiate. She had a mental health breakdown and she was unable to deal with anything to do with the claim. She described herself as being a vegetable. She accepted that she probably received the correspondence from the Tribunal, however she could not remember. She initially had some help with her claim from some friends but after her mental health breakdown she had no contact with them. She re-established contact in January 2023 and her friends realised there was a problem and she received support again. She was taking medication at the time of the hearing and was feeling a bit better.[29]The Claimant submitted, that if she read the correspondence she could not remember whether she understood it. English was not her first language and she recently had tried to use a computer translator and the information which came out confused her even more. Additional information by the Claimant[30]The Claimant provided a document from her Polish doctor. It noted that in July 2011 after a psychiatric assessment she was diagnosed with Bipolar Affective Disorder. She was to be treated with neuroleptics and psychotherapy. Judicial notice is taken that neuroleptics are antipsychotic medications mainly prescribed to manage mental illnesses such as schizophrenia and bipolar disorder.[31]She also set out in a witness statement that after her dismissal she was under a great deal of stress and acute depression occurred. She was in a state of total indifference to the surrounding world, was crying, unable to get out of bed and unable to take action to enable normal functioning. She also said that after her diagnosis in July 2011 she was prescribed medication. During lockdown in 2021 she was deprived of a possibility of contacting a psychiatrist of GP and was not give further treatment with the medication she had been on. Her condition had been exacerbated in October 2022 and at that time she was dependent upon the help of strangers. She did not receive professional help and developed a state of hypermania. She has since been under the supervision of a psychiatrist in Poland and is now taking appropriate medication and waiting for an appointment and referral in the United Kingdom.[32]The Claimant also provided an extract from a UK medical record, which detailed her daughter had contacted the surgery in January 2021 and was concerned that she appeared very low and was driving erratically. The note included, “Known bipolar but lost in translation so treated as depression.” Referred urgently to mental health team and a prescription of diazepam. Respondent’s written submissions[33]The Respondent’s written submissions set out that the Claimant had been required to provide a report from her doctor setting out the nature of the condition, when it started, how long it lasted and her capability of bringing a claim. It was submitted that the report from Poland said that the Claimant had been diagnosed with Bipolar disorder in 2011 and there was no detail as to how the Claimant had been treated with neuroleptics and was surprised at the lack of information and that the consultation had been 45 minutes.[34]It was submitted that no evidence had been provided to support that she had been on medication before arriving in the UK or that she was denied medication during the pandemic. It was puzzled by the lack of evidence about the identity of a GP or psychiatrist in the UK.[35]It also submitted it was alarmed to learn of the Bipolar diagnosis and submitted that on starting her employment she had said she did not suffer from mental health illnesses and this was misleading and could mean she was liable for dismissal.[36]Further reference was made to the decision in Emuemukoro.[37]In further written submissions dated 28 February 2023, the Respondent referred to the medical document from UK medical records. It submitted that it referred to matters well before the relevant time and should be disregarded because it was sent outside of the time specified in the order.[38]It was further submitted that the Claimant had not complied with the direction to provide information about the date she made the protected disclosure and submitted that the Claimant had provided a witness statement about what she had said but had not included a date and it expected documentary evidence.[39]It further submitted that in relation to providing a schedule of loss the Claimant had provided payslips and not a schedule of loss and she had failed to comply with the direction.
The law
[40]The Employment Tribunal Rules of Procedure 2013 are in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and are referred to in this judgment as “the Rules”. Rule 37(1) provides that(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.[41]Rule 39 provides that where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party ("the paying party") to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. Under Rule 39(2) the Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. Strike out: no reasonable prospect of success[42]Under rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a tribunal can strike a claim out if it appears to have no reasonable prospect of success. It is a two stage process; even if the test under the rules is met, a judge also has to be satisfied that his/her discretion ought to be exercised in favour of applying such a sanction. Striking out a claim is a draconian step and numerous cases have reiterated the need to reserve such a step for the most clear and exceptional of cases (for example, Mbuisa-v-Cygnet Healthcare Ltd UKEAT/0119/18).[43]The importance of not striking out discrimination and whistleblowing cases, save in only the clearest situations, has been reinforced in a number of cases, particularly Anyanwu-v-South Bank Students Union [2001] UKHL 14 and, in Balls-v-Downham Market School [2011] IRLR, Lady Justice Smith made it clear that "no” in rule 37 means "no”. It is a high test.[44]In Ezsias-v-North Glamorgan NHS Trust [2007] EWCA Civ 330 the Court of Appeal stated that it would only be in exceptional cases that a claim might be struck out on this ground where there was a dispute between the parties on the central facts. Sometimes it may be appropriate to resolve key factual dispute by hearing evidence even at a preliminary hearing (as in Eastmanv-Tesco Stores [2012] All ER (D) 264).] Deposit[45]Where a tribunal considers that any specific allegation, argument or claim has little reasonable prospect of success it may make a deposit order (rule 39). If there is a serious conflict on the facts disclosed on the face of the claim and response forms, it may be difficult to judge what the prospects of success truly are (Sharma-v-New College Nottingham [2011] UKEAT/0287/11/LA). Nevertheless the tribunal can take into account the likely credibility of the facts asserted and the likelihood that they might be established at a hearing (Spring-v-First Capital East Ltd [2011] UKEAT/0567/11/LA).[46]The case of Hemdan v Ishmail [2017] IRLR 228 was of assistance, in particular paragraphs 12, 13 and 15. The test is less rigorous than the test for a strike out, but “nevertheless there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or defence. “The assessment of the likelihood of a party being able to establish facts essential to his or her case is a summary assessment intended to avoid cost and delay. Having regard to the purpose of a deposit order, namely to avoid the opposing party incurring cost, time and anxiety in dealing with a point on its merits that has little reasonable prospect of success, a mini-trial on the facts is to be avoided, just as it is to be avoided on a strike out application, because it defeats the object of the exercise… If there is a core factual conflict it should be properly resolved at a full merits hearing where evidence is heard and tested.” “Once a tribunal concludes that a claim or allegation has little reasonable prospects of success, the making of a deposit order is a matter of discretion and does not follow automatically. It is a power to be exercised in accordance with the overriding objective, having regard to all of the circumstances of the particular case.[47]Under rule 39(2)When considering an application for a deposit order it is also necessary to make reasonable enquiries into the paying party’s ability to pay the deposit and to have regard to such information when deciding the amount of the deposit. Strike out: Rule 37 (1)(c) non-compliance with an order[48]Striking out the claim or a response for non-compliance with an order is also a draconian step which the Court of Appeal has indicated should not be too readily exercised (James-v-Blockbuster Entertainment Ltd. [2006] EWCA Civ 684). Such a decision clearly also needs to be proportionate to the offence.[49]The guiding principle is the overriding objective (rule 2) which I have kept at the forefront of my mind during the course of this hearing. I have to consider all the relevant factors including the prejudice caused by the conduct or breaches, whether the nuclear option of striking the case out is proportional, whether a lesser sanction would do and, critically, whether a fair trial is still possible.[50]In Blockbuster, the Court of Appeal held that striking out could only be justified if the offending party had been guilty of deliberate and persistent procedural disregard or unreasonable conduct which had made a fair trial impossible. Nevertheless, even if these tests are met, it does not follow the claim has to be struck out. A tribunal is always left with a discretion (the use of the word ‘may’ at the start of rule 37) which I have to exercise in accordance with the guidance that I have attempted to summarise.[51]In Arrow Nominees Inc & Anor v Blackledge & Ors [2000] WL 775004, other relevant factors to consider, included that a fair trial is one which is conducted without undue expenditure of time and money and one with a proper regard to the demands of other litigants upon the finite resources of the court.[52]In Emuemukoro v Croma Vigilant (Scotland) Ltd & Ors UKEAT/0014/20/JOJ the application to strike out was made on the first morning of the final hearing. The Claimant’s dismissal was in December 2017 and the claim presented in May 2018. It case management hearing was held on 1 May 2019 at which the final hearing was listed and case management orders made. The Respondent, who was professionally represented, did not comply with any of the case management orders. The EAT, in rejecting the Respondent’s submission, held that there was nothing in the authorities supporting proposition that when considering whether a fair was possible it was to be determined in absolute terms, i.e. whether a fair trial was possible at all and not just whether it was still possible within the allocated trial window. It was said, “where an application to strike-out is considered on the first day of trial, it is clearly a highly relevant consideration as to whether a fair trial is possible within that trial window. In my judgement, where a party’s unreasonable conduct has resulted in a fair trial not being possible within that window, the power to strike out is triggered. Whether or not the power ought to be exercised depend on whether or not it is proportionate to do so.” Rule 37 (1)(d) not actively pursuing claim[53]In Evans and anor v Commissioner of Police of the Metropolis [1993] ICR 151, CA, the Court of Appeal held that an employment tribunal’s power to strike out a claim for want of prosecution must be exercised in accordance with the principles that (prior to the introduction of the Civil Procedure Rules in 1998) governed the equivalent power in the High Court, as set out by the House of Lords in Birkett v James [1978] AC 297, HL. Accordingly, a tribunal can strike out a claim where:• there has been delay that is intentional or contumelious (disrespectful or abusive to the court), or• there has been inordinate and inexcusable delay, which gives rise to a substantial risk that a fair hearing is impossible, or which is likely to cause serious prejudice to the respondent.[54]The first category includes cases where the claimant has failed to adhere to an order of the tribunal. As such, it overlaps substantially with the tribunal’s power under rule 37(1)(c) to strike out for non-compliance with tribunal rules or a tribunal order. The second category requires not only that there has been a delay of an inordinate and inexcusable kind, but that the respondent can show that it will suffer some prejudice as a result. In O’Shea v Immediate Sound Services Ltd [1986] ICR 598, EAT, the EAT held that prejudice was inherent in the failure to prosecute a case in time and so it was not necessary for the tribunal to consider this factor separately. However, this was held to be erroneous by the Court of Appeal in Evans and anor v Commissioner of Police of the Metropolis although the Court considered that the decision in O’Shea was nonetheless correct on its facts. In any event, prejudice may not be difficult to show, as it will often be necessary ‘to investigate the facts before memories have faded, not to allow hurt feelings to fester and to provide as summary a remedy as possible’. Conclusions Is C in breach of an order/is the claim being actively pursued?
Conclusions
[55]The Claimant has not complied with any of the case management orders and was in breach of them. This was serious in that it meant that the final hearing could not be effective and the Tribunal’s finite resources were not being used efficiently. A fair trial was not possible within the trial window.[56]The Claimant relied upon, in part, that she has limited English language skills. This was in part evidenced by the need for an interpreter at the hearing and the way in which she asked if there was anything else required when providing the contact details for the final hearing. I accepted that the Claimant had limited understanding of English and that she was unsupported by her friends until January 2023. It was also relevant that the Claimant was a litigant in person, with no apparent experience of the Tribunal process. The Claimant therefore has difficulty in understanding what she should do.[57]The Claimant has provided some limited medical evidence. The Respondent makes a fair point that the medical evidence is limited and does not provide much detail about the effect of the condition on the Claimant in terms of her ability to pursue her claim. However, there is a clear diagnosis that the Claimant has Bipolar Affective Disorder and that she should be treated with antipsychotic medication. Although the document from 2021 was received late the Respondent has provided its response to it and it provides further confirmation that the Claimant has Bipolar disorder. It provides useful information in terms of depressive symptoms and erratic behaviour experienced before.[58]I accepted that the Claimant was without medical assistance at the time she presented the claim. This was evidenced by her current treatment being from Poland. I also accepted that after presenting her claim she had a mental breakdown in October 2022 and that she did not have anti-psychotic medication. This was supported by the lack of such medication being referred to in the medical note from 2021. There is further support in what the Claimant says on the basis that the Respondent was informed by the Claimant’s daughter that she did not know of her whereabouts. I accepted that during the time the Claimant should have been preparing for the hearing, she was unable to properly cope and was not functioning. This was not a case in which the Claimant had deliberately failed to comply with the orders. When the Claimant had recovered sufficiently she started to engage in the process again.[59]The Claimant also does not appear to fully understand what she needs to do. The Respondent referred to failures of the Claimant to comply with the most recent orders, however it is clear she is attempting to comply by providing documentation. The parties are reminded that they must cooperate in the preparation for the claim and the Tribunal is mindful that the Claimant is a litigant in person and needs an interpreter.[60]The prejudice to the Respondent is that there has been a delay in resolving the claim and until the hearing on 30 January 2023 it had not fully understood the nature of the claim against it. However, the Claimant’s recent mental health difficulties and need for an interpreter were very relevant. Although the original hearing window has been lost, that is only part of the test. It is necessary to consider whether it is proportionate to strike out the claim. In terms of prejudice to the Claimant she would be prevented from bringing her claim.[61]Striking out is a draconian sanction. The Claimant has not deliberately failed to comply and she is seeking to pursue her claim. The claim was presented on 30 August 2022 and still can be heard within a reasonable time. Considering the overriding objective, the interests of justice and the prejudice to the Respondent it is not proportionate to strike out the claim and in the circumstances it would be overly draconian to do so.[62]The application on these grounds is dismissed. Prospects of success[63]The Claimant clarified what her claim was about and permission was given to amend her claim to include an allegation of automatically unfair dismissal. There are significant factual disputes between the Claimant and Respondent, in particular whether she received verbal or written warnings about her conduct. Further whether the Claimant was raising concerns about the health and safety of using the hoist. Further there is a factual dispute as to whether the Claimant should have been paid more in respect of her travel expenses and whether she had been paid properly for the work that she had undertaken. The submission of the Respondent that the Claimant had not provided it any evidence to support her claims is factually accurate, however the prospects of success must be determined on the basis of the information provided at the hearing. The lack of evidence has been caused by the difficulties outlined above. This is a case involving whistleblowing and such cases should only be struck out in the clearest of cases[64]On the basis of the pleaded and clarified cases there are significant and central factual disputes between the parties. Neither party supplied any documentary evidence as part of this hearing and the Tribunal was left working on the basis of the pleaded cases only. It was not possible to say that the claims had little or no reasonable prospects of success.[65]The applications for strike out or a deposit based on the prospects of success are dismissed.
Conclusions
[1]The following claims succeed and the Claimant is awarded the compensation specified;1.1 Unfair dismissal (s. 98);1.1.1 A basic award of £315.00, having been reduced by 75% under s. 122 (2);1.1.2 A compensatory award of £150.94, having been reduced by 75% under the principle in Polkey, increased by 25% under s. 207A of the Trade Union and Labour Relations (Consolidation) Act and reduced under s. 123 (6); A total of £465.94.1.2 Breach of contract (notice); an award of £1,890, having been increased by 25% under s. 207A of the Trade Union and Labour Relations (Consolidation) Act;1.3 Unlawful deductions from wages; an award of £3,249, having been reduced by 10% under s. 207A of the Trade Union and Labour Relations (Consolidation) Act;1.4 Unpaid holiday pay; an award of £108.54. The total amount of compensation is therefore; £3,823.48[2]The Claimant’s complaints of unfair dismissal for having made public interest disclosures (s. 103A) and breach of contract relating to mileage expenses fail and are dismissed. 10.2 Judgment - rule 61 Case No: 1402848/2022[3]The Recoupment Regulations do not apply in relation to paragraph 1.1.2 above.