Ms G Wilkin v Harold Wood Pre School Ltd: 3200182/2025
JUDGMENT
[1]The complaint of unfair dismissal is well-founded and succeeds.[2]The unlawful deduction of wages complaint is dismissed upon withdrawal by the Claimant.[3]The breach of contract (wrongful dismissal) complaint is well-founded and succeeds.[4]The Respondent must pay to the Claimant 4.1. For breach of contract: Damages of £1276.31 4.2. For unfair dismissal: A basic award of £1595.32 A compensatory award of £627.00 A total of £3,498.63. A calculation is attached to this judgment. Case Number: 3200182/2025 2[5]Recoupment applies only to the compensatory award and only insofar as, if at all, the Claimant’s UC award increased after 28 January 2025, see the recoupment notice attached. For the purposes of the Recoupment Regulations therefore: 5.1. The monetary award is £3,498.63 5.2. The prescribed element is £627.00 5.3. The period to which the prescribed element relates is 10 January to 31 January. 5.4. The amount by which the monetary award exceeds the prescribed element is £2871.63. _____________________________ Employment Judge Moor Dated: 14 August 2025 Case Number: 3200182/2025 3 CALCULATION Gross monthly pay £921.78 Net monthly pay £905.70 Gross weekly pay = 921.78 x 12/52 = £212.71 Net weekly pay = 905.70 x 12/52 £209.00 6 complete years’ service of which 3 were over the age of 42 years. Effective Date of Termination 10 January 2025[1]Breach of Contract (damages amounting to 6 weeks’ gross pay) = 212.71 x 6 = £1276.31[2]Basic award of 3 x 212.71 + 3 x1.5 x 212.71 = 638.13 + 957.19 = £1595.32[3]Compensatory award 3 weeks net pay For the period from 10 January 2025 to 31 January 2025 = 3 x 209 = £627.00 Case Number: 3200182/2025 4 RECOUPMENT NOTICE Recoupment of Jobseeker’s Allowance, income-related Employment and Support Allowance, Universal Credit and Income Support. The Tribunal has awarded compensation to the Claimant but not all of it should be paid immediately. This is because the Department for Work and Pensions (DWP) has the right to recover (recoup) any Jobseeker’s Allowance, income-related Employment and Support Allowance, Universal Credit or Income Support which it paid to the Claimant after dismissal. This will be done by way of a Recoupment Notice which will be sent to the Respondent usually within 21 days after the Tribunal’s judgment is sent to the parties. The Tribunal’s judgment states the total monetary award made to the Claimant and an amount called the prescribed element. Only the prescribed element is affected by the Recoupment Notice and that part of the Tribunal’s award should not be paid until the Recoupment Notice has been received. The difference between the monetary award and the prescribed element is payable by the Respondent to the claimant immediately. When the DWP sends the Recoupment Notice, the Respondent must pay the amount specified in the Notice by the Department. This amount can never be more than the prescribed element of any monetary award. If the amount is less than the prescribed element, the Respondent must pay the balance to the Claimant. If the Department informs the Respondent that it does not intend to issue a Recoupment Notice, the Respondent must immediately pay the whole of the prescribed element to the claimant. The Claimant will receive a copy of the Recoupment Notice from the DWP. If the claimant disputes the amount in the Recoupment Notice, the Claimant must inform the DWP in writing within 21 days. The Tribunal has no power to resolve such disputes, which must be resolved directly between the Claimant and the DWP. Case Number: 3200182/2025 1 EMPLOYMENT TRIBUNALS Claimant: Ms G Wilkin Respondent: Harold Wood Pre School Limited[1]The claimant’s applications dated 26 August and 1 and 10 September 2025 to reconsider and vary judgment sent to the parties on 28 January 2024 are allowed but only so that:a. The week’s pay is calculated without pension deductions, and is varied to £212.71 for all awards andb. the correct date of birth of the claimant is 23 June 1982 and thus the basic award is varied to reflect this.[2]Otherwise the reconsideration application is refused.[3]The Respondent must therefore pay to the Claimant: For breach of contract: Damages of: £1276.31 For unfair dismissal: a basic award of: £1382.62 Compensatory award of £638.13 A total award of £3,297.06 A full calculation is set out in the written reasons below.[4]Recoupment applies only to the compensatory award and only in so far as, if at all, the claimant’s UC award increased after 28 January 2025, see the Recoupment Notice attached to the original judgment. For the purposes of the Recoupment Regulations therefore:a. the monetary award is £3297.06 Case Number: 3200182/2025 2b. the prescribed element is £638.13c. the period to which the prescribed element relates 10 January to 31 Januaryd. the amount by which the monetary award exceeds the prescribed element is £2658.93REASONS
[1]Judgment in this claim was sent to the parties on 28 August 2025, having been given orally on 13 August 2025.[2]I made a calculation of remedy based on the Claimant’s Schedule of Loss and the details of pay set out in the pleadings.[3]The Claimant wrote on 26 August 2026 to seek a reconsideration of the calculation of remedy. She said she worked term times only, 43.5 weeks per year, but she was paid monthly across the year. She sought to vary the award so that her annual pay divided by 43.5 weeks was the week’s pay used in the calculations of remedy. I considered there was a reasonable argument (not necessarily good) as to the calculation of remedy and ordered that the Claimant set out the calculation and gave the Respondent 14 days after the Claimant’s response to reply, once the judgement had been sent to the parties. In accordance with Rule 70 I gave both parties the opportunity to state whether they considered the matter could be decided without a hearing. Neither have stated their preference.[4]The Claimant wrote to the Tribunal two more times, copying in the Respondent. First on 1 September 2025 with a calculation of the remedy in accordance with her contention that her week’s pay should be her salary divided by 43.5 weeks not 52 weeks. And second on 10 September (within the 14 day deadline for seeking a reconsideration) stating that in addition her date of birth was written incorrectly on the ET1 form and this changed the calculation of the basic award.[5]The Respondent has not sent in a response within the time required. Having considered the Claimant’s arguments I decided to reconsider the judgment without a hearing: this saved time, cost and was appropriate given the relatively narrow issues at stake. Reconsideration Principles[6]A reconsideration application is not a chance to have a second bite at the litigation cherry. It must be in the interests of justice to reconsider a decision so as to vary it. The interests of justice favour finality in litigation. Justice also generally requires that the awards made be legally correct and accurate.[7]It seems to me the Reconsideration application in relation to the calculation of her week’s pay over 43.5 weeks fails in that she is seeking a second bite at the litigation cherry. The Claimant put forward her schedule Case Number: 3200182/2025 3 of loss based on her monthly remuneration over 52 weeks. She has put forward no reason for not making this argument earlier and it is not in the interests of justice to reconsider because finality in litigation is important. The Calculation of a Week’s Pay[8]In any event, the Claimant’s submissions about the proper calculation of her week’s pay for the basic award are not legally correct.[9]Section 221(2) of the Employment Rights Act 1996 defines a week’s pay for this purpose and provides that: ‘Subject to section 222 if the remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week’s pay is the amount which is payable by the employer under the contract of employment in force on the calculation day if the employee works throughout his normal working hours in a week. Section 222 applies if the employee is required to work during normal working hours on days of the week which differ from week to week or over a longer period so that the remuneration payable for, or apportionable to, any week varies according to the incidence of those days or times. If so then the amount of the week’s pay is the last 12 week average.[10]Here the Claimant’s remuneration (pay) did not vary with the amount of work she did: she was paid regularly whether or not she worked. Thus section 221(2) applies and the week’s pay is calculated according to the regular monthly payments she actually received, not the term time work from which it was earned. Notice Period[11]The calculation of damages for not having been given contractual notice depends upon what the Claimant had lost in the relevant notice period. The Claimant would have received payments averaged over the 52 weeks during that period and that is what she had lost, not some higher payments based on the value of those payments in respect of term time work. Thus in this respect her reconsideration application also fails. Pension Deductions[12]The Claimant states that the difference between the gross and net figure in the calculation I used relates to pension contributions only which should not have been deducted. I agree and this was my error, which it is in the interests of justice to correct. The annual salary was less than the personal allowance and therefore no tax was deducted. The calculations therefore should have been based on the monthly pay of £921.78 without any deduction. Date of Birth Case Number: 3200182/2025 4[13]It was the responsibility of the Claimant to check the accuracy of her Schedule of Loss and the details on her claim form. She has frankly acknowledged, against her own interest, that her date of birth was an error and thus the calculation of her basic award. It is in the interests of justice to correct such an error.[14]I allow the reconsideration application and vary the awards so that they are all calculated on weekly pay of £212.71 without the pension deduction and so that the basic award is calculated using the correct date of birth. Otherwise I do not allow the application.[15]Calculation as varied by reconsideration: Monthly pay £921.78 Weekly pay £212.71 Date of birth 23 June 1982 Effective date of termination 10 January 2025 (age 42 at date of termination). 6 complete years of service, one of which not below age 41. Complete years not below age 41, counted backwards from date of termination = 1 year[1]Breach of contract (6 weeks’ pay) = 212.71 x 6 = 1276.31 Basic award 1 x 1.5 + 5 = 6.5 x 212.71 = 1382.62[3]Compensatory award 3 weeks pay = 212.71 x 3 = 638.13 Total award = £3,297.06 Employment Judge Moor Dated: 10 October 2025 Case Number: 3200182/2025 1 EMPLOYMENT TRIBUNALS Claimant: Ms G Wilkin Respondent: Harold Wood Pre School Limited SECOND JUDGMENT ON RECONSIDERATION The respondent’s application dated 6 September 2025 for a reconsideration of the judgment sent to the parties on 28 August 2025 is refused (save as to the calculation of the basic award already varied), it not being in the interests of justice to vary the judgment.[1]First, I apologise now to the respondent on behalf of the Tribunal administration. At the time I decided the Claimant’s application for reconsideration on 8 October 2025, it had not been brought to my attention that the respondent had also sought a reconsideration on 6 September 2025. Its application was not referred to me until 20 October 2025. This has caused me twice the work and no doubt has deepened the respondent’s frustration with the process. I sincerely apologise. I have now, nevertheless and as quickly as possible, considered carefully the points made by the Respondent. I am grateful for the way in which they have been set out.[2]I have decided there is no reasonable prospect of the reconsideration application being successful for the following reasons. Employment Tribunal Rules of Procedure 2024[3]Under Rule 70 I must first consider whether there is a reasonable prospect of the judgment being varied or revoked. If not, then I must refuse it.[4]There is not an unlimited power to reconsider: it must be in the interests of justice to do so. I consider the overriding objective including dealing with cases without delay, saving expense and proportionately to the issues. There should be finality in litigation – the reconsideration application is not merely the chance to have a ‘second go’ at arguments in the response or Case Number: 3200182/2025 2 indeed to raise new ones. It would not be in the interests of justice to allow parties to continue to litigate their differences beyond the final trial, just because they had thought of something new. The parties need only imagine what this would do to the administration of justice if claims were allowed to continue after judgment in such a fashion. Finality is important for clarity; fairness; and efficiency and economy in the administration of justice; and to save the time and costs of all parties involved. Further, if a party seeks to make a new point or argument, it must have good reasons for why it could not do so at the hearing before I could reconsider on that basis. This application[5]First, in my first judgment on reconsideration I varied the basic award in the Respondent’s favour, given the correct date of birth.[6]Second, in summary the Respondent makes the following points: 6.1. it took a moral stance and justice should reflect this; 6.2. Mrs Fenn should have been believed and not the Claimant on what was said at their meeting; 6.3. it would have taken less than 3 weeks for a fair disciplinary process to take its course in such a small enterprise; 6.4. it doubts the information provided to the Tribunal on mitigation; 6.5. it seeks repayment for lost uniforms; 6.6. it suggests that the Claimant accept that it pays £5,000 to a charity to settle the matter.[7]Save for the latter these are all classically arguments in which the Respondent seeks to have a second bite at the litigation cherry. For the principled reasons I have already given, is not in the interests of justice to reconsider on such a basis.[8]As for points 6.1 and 6.2, the morals of the matter were, as I was at pains to point out, not the first question before me. The crucial question was whether there had been a dismissal or a resignation. I decided there had been a dismissal. I indicated this had been a difficult decision and gave orally my carefully thought-through reasons for it. The respondent’s application simply seeks to change my mind using the same arguments as before (or arguments that could have been deployed at the time) and it is not in the interests of justice to allow a further reconsideration hearing to do so. I did find that the Claimant could not have continued in employment after a fair procedure had been carried out and that is why I stopped her loss at that point. Workplace justice requires a fair procedure before a decision on outcome: the respondent had not adopted a fair procedure and merely dismissed the Claimant immediately. I also decided she was not guilty of gross misconduct at work and it is not in the interests of justice to hear the same arguments about that again. Case Number: 3200182/2025 3[9]As to 6.3, a glance at the ACAS Code on Discipline shows that a fair disciplinary process requires reasonable investigation, notifying an employee as to the allegation against them and giving them a chance to attend a hearing with someone to accompany them to state their case. This all takes time. It also requires the opportunity to appeal again at a hearing and again with the right to be accompanied. This also takes time. It is not in the interests of justice for me to change my mind about the likely time this would have taken. I considered it carefully at the time and the respondent merely repeats the same argument.[10]As to 6.4 I assessed the compensatory award (over the first 3 weeks and the loss of notice period) on the evidence I heard at the time. The respondent had the opportunity then to make these points. For the principled reasons I have already given, it is not in the interests of justice to reopen that question.[11]As to 6.5, there was no counterclaim before me. It is not in the interests of justice to seek to amend the response to include one after judgment. The Respondent has given no good reason why this point was not raised at the time.[12]The point made at 6.6 is a matter for the parties, not for me because it relates to a possible settlement.